Posted by marykeating on February 7, 2010 under Employment at will, Unemployment compensation | 
The plight of unemployed workers is inextricably linked to the high rate of foreclosures. These are not the stories of people who bought a house on credit that they could, under no fantasy, afford. Those are the extremes, and were never destined to work out.
These are the stories of ordinary people squeezed by daily expenses, but making it until they were brought down by a prolonged period of unemployment. They lose their houses, their credit is smashed, and when they finally get a new job, they remain insecure. A recent New York Times article details only three such examples, but they are surely worth pondering as we see whether the American mindset will permanently change. Our grandparents (or parents or great-grandparents) who lived through the Great Depression were more likely to believe in saving to the point of miserliness, buying nothing on credit, and putting by for retirement. Yet, as the thirties turned into the forties and fifties, the post-war economy soared, social security was available, good private pensions abounded, and people took more risks. Easier, perhaps, when a lifetime at one company was commonplace.
Now many well-educated, well-trained, hard-working people have lived the reality of employment at will. They may not be able to afford a house again, or be able to handle the commitment required. They know that loyalty to an employer is a one-way relationship. Will their experiences change our priorities and choices, or will our native optimism prevent us from redefining the American dream?
Posted by marykeating on February 6, 2010 under Pending legislation, Unemployment compensation |
We get occasional glimpses of hope in the economic news, but the unemployment rate remains high. The latest projection I heard projected unemployment remaining above ten percent all year. To deal with the prolonged unemployment of so many workers, the government has extended the maximum weeks of unemployment benefits. It also has increased the unemployment tax payable by employers.
This sets the stage for the classic clash of interests in Annapolis. Some business interests are asking for a reduction of benefits, while others are urging higher weekly benefits and more weeks. An emergency bill is pending this session, and has made it past the first stage. According to the bill, some of the changes to the law are necessary to qualify for the federal stimulus funds.
One of the more employee friendly provisions changes the formula for calculating the weekly unemployment benefit, by looking at the most recent four quarters of pay rates. This provision would help workers who had been earning increased amounts in their fields before becoming unemployed.
In addition, the law provides for extended benefits and training for unemployed workers who have been unemployed for an extended period, and are in a declining occupation, or were laid off in a permanent reduction in force. Employers’s rating experience is not charged for unemployed individuals receiving the additional training benefits.
Posted by marykeating on January 29, 2010 under Discrimination in employment, Wage and hour issues |
As is typical in a State of the Union address, the President touched Wednesday on a number of themes, domestic and foreign. But he specifically alluded to two employment issues that have a lot of resonance in a post-Bush era.
“We are going to crack down on violations of equal pay laws — so that women get equal pay for an equal day’s work.” Nice words; in actuality it has proved difficult for women to prevail on equal pay laws, which require the genders to be paid equal pay for equal work, where the jobs require equal skill, effort, responsibility, and working conditions. Although cases say that the jobs need to be “substantially” equal, courts have too often required women to show that the male who is making more money is doing the identical job, and has identical qualifications. There are always some differences between people. Proving that two jobs are substantially equal is nearly impossible at higher levels, like vice presidents. Yet when a woman at the same level of a corporate organization chart makes $30,000 less than her peer, there should be some redress. Let’s hope the President’s promise comes with some improved legislation.
In the inspirational department, the President said this:
“Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else. We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination.”
Again, nicely stated. But there are plenty of indications that the enforcement has been ratcheted up at the federal level, by both the EEOC and the Department of Justice.
Posted by marykeating on January 21, 2010 under Sex-based discrimination |
The post on January 15 described the furor about the panel described as having “distinguished gentlemen” weighing in on the strengths and weaknesses of women lawyers. The panelists, who apparently are well known for their mentoring of women lawyers, have all dropped off and the program’s description altered. These particular participants were not challenged, it was the poorly worded blurb leading to the perception that only men had the inner knowledge of what women needed to succeed.
Posted by marykeating on January 19, 2010 under Discrimination in employment |
Today’s New York Times published an interesting article on research about “colorism,” a touchy phenomenon that’s harder than race to discuss.
Title VII of the Civil Rights Act has included “color” as well as “national origin” as protected categories, and forbids discrimination on those bases. More cases are brought on the basis of alleged race discrimination than any other category. Both studies and experience show that the shade of skin color affects the level of discrimination, or leads to discrimination within the same protected category. This article reports several fascinating but disturbing studies showing the reactions of voters when shown then-candidate Obama with a lighter-skinned then darker-skinned family, and with an African-American mayor whose skin was darkened by photo software for the purpose of a Republican ad.
Courts seem to have difficulty with the concept that a member of one minority group may discriminate against a member of the same group on the basis of “color.” But such discrimination does occur, not just within the African-American community but with Hispanics, and Indians, to mention two. In this kind of discrimination, it may be necessary to educate judge and jury members on the phenomenon as well as the specific language used to point out these inter-category distinction.
Posted by marykeating on January 15, 2010 under Gender orientation discrimination |
Many organizations, including employers, give lip service or even thoughtful consideration to “diversity.” Some conservative acquaintances (including one parent) find this word an opening for a diatribe on what is wrong with the modern world. Add “politically correct” to the mix and you may have ruined that nice dinner party.
But increasing the representation of women and minorities is important for a number of reasons, not the least of which is avoiding liability for discrimination. A better way to avoid liability for discrimination is to abandon discrimination. Can a truly color and gender blind organization exist? Maybe not, but some are more equal than others (with apologies to George Orwell). An organization can foster a culture where all newer workers are given mentors, are judged according to their merits and contributions, and not thought of first as “the Asian woman” or “that African-American guy.”
Where that does not happen, minorities and women have found it helpful to band together and find mentors of their own gender or race. The polite response from the majority leadership is to accept and promote these efforts at a distance, without trying to run them.
But sometimes the majority leadership can’t help themselves. An especially rich example of this comes from the New York State Bar Association. In order to give women lawyers some helpful pointers on their shortcomings, the bar association offered a panel discussion entitled “Their Point of View: Tips From the Other Side.” The program brochure describes the discussion as follows. “A distinguished panel of gentlemen from the legal field will discuss the strengths and weaknesses of women in the areas of communication, negotiation, mediation, arbitration, organization, and women’s overall management of their legal work.”
Brilliant. One blogger, Bridget Crawford, was incensed, and stated as follows:
I call for all members of the NYSBA to boycott this panel discussion. Yes, the speakers have a right to speak, but we don’t have to go and listen. Men have been telling us FOR YEARS how we don’t measure up. To have a panel of men, endorsed by the New York State Bar Association, discussing our “strengths and weaknesses,” is a regression and an insult to all women in the legal profession.
After this and other complaints, the program was changed, both to include women and to describe the “challenges” faced by women, rather than a discussion of their “strengths and weaknesses.”
The truth is that women have high enrollment numbers in law school, and have for years, yet proportionally speaking are not advancing in the field. Still, having men point out our weaknesses in the overall management of our legal work? Somebody needs diversity training.
Posted by marykeating on January 11, 2010 under Gender orientation discrimination |
The EEOC negotiated a huge settlement with Outback Steakhouse restaurant chain on behalf of women who were unable to advance because of the company’s glass ceiling.
The management positions at Outback were filled by men. To be considered for management positions, the applicant had to have kitchen experience. Outback, however, did not give women the kitchen jobs. That pattern led to a $19 million settlement that will be shared by a number of women who worked at Outback for at least three years between 2002 and now.
A settlement of this magnitude alone sends a cautionary message, and in most cases should inspire an employer to institute reforms. But the settlement agreement itself requires Outback to make substantive changes in its application procedures, hire a “Vice President for People,” and hire an outside consultant for two years to monitor progress. The EEOC will also require semi-annual reports.
The EEOC obtained a large verdict against Outback in 2001, based on a single instance of sex discrimination in pay, and retaliation against the woman who complained about her male counterpart making nearly double her salary.
Is it possible for a company to reform its discriminatory ways? In this case, the EEOC’s oversight measures are designed to force both change and awareness of the impact of policies that result in discriminatory decisions, even if not consciously made. But cultures favoring one sex or race can be difficult to alter. If the Outback upper management has fostered a corporate culture of men-in-charge, it may not change in any systemic way. On the other hand, the oversight and the boon to the women working at Outback should keep the decisions scrutinized for some time. Perhaps the transparency will require Outback’s culture to evolve.
Posted by marykeating on January 7, 2010 under Discrimination in employment |
Yesterday, the Equal Employment Opportunity Commission released statistics showing that charges of job discrimination had risen. “93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009.” The federal government’s fiscal year ends on September 30. The highest categories were race, retaliation, and gender. The total claims are the second-highest on record, as were the total age discrimination charges.
Interpreting these statistics without more information involves making a lot of assumptions. The economy tanked and layoffs were rampant. So people who lost their jobs, and could not find another one, may be more likely to file a charge of discrimination. Cash-strapped companies may have been less likely to offer good severance packages. Severance agreements nearly always require the recipient to release discrimination claims.
But the existence of more unhappily unemployed people is only a part of the story. Was there more discrimination as well? When a company has to let go a portion of its workforce, what factors are used? In my interviews with potential clients, I am getting the sense that age is often figured in, though perhaps subconsciously. An employer trying to trim the workforce and decide which workers to retain may utilize biases in favor of the young, such as perceived energy level, ability to keep up with technology, youthful looks, and cheaper health insurance benefits. These same sorts of biases can eliminate women (they won’t work hard if they have or want families), blacks (they don’t fit in here, and we need “team players”), the disabled (they can’t handle the job if it gets harder), and so forth.
The unfortunate part is that proving discrimination in reductions in force is hard, unless a decisionmaker is candid about the reasons for cutting someone. Usually the proof is circumstantial, and the courts can be hostile to these claims. I don’t think that judges can relate to age discrimination, especially, since they are well insulated personally from this kind of bias.
Posted by marykeating on January 4, 2010 under Workplace privacy |
The Supreme Court will decide whether a police officer in California has the right to prevent his bosses from reviewing text messages he sent from a department-issued pager. 
Like many employers, the City of Ontario has its employees sign agreements acknowledging that they may not use its computers for personal matters, and have no expectation of privacy in any messages sent. When the pagers were issued, the department stated that the email policy covered the pagers, too. But a different message was conveyed by the department, which told Sergeant Quon and his peers that they could use the pagers for 25,000 characters per month; they would be charged for messages exceeding that limit. Quon exceeded the message limit and paid for the overage.
The department decided that the text volume may indicate that some employees were wasting time, and ordered an audit, including transcripts, of the messages. Quon and another officer objected when the department released the transcripts, showing that Quon sent sexually explicit messages to his wife and another woman. The Ninth Circuit Court of Appeals ruled that the employees had a reasonable expectation that the messages would remain private, given the department’s earlier treatment of pager use.
The Supreme Court may choose to issue a narrow ruling, limited to employers with policies like that of Ontario. On the other hand, it may broaden its discussion of employee privacy rights in general, or government employees as a group. Part of the lower court’s decision related to the Fourth Amendment to the constitution, covering unreasonable searches and seizures. The Fourth Amendment applies to federal and state governments, not to private employers.
Ordinarily decisions in cases accepted at this point are issued by the end of the term, in June. The case is Quon v. City of Ontario. It’s discussed at the SCOTUS blog, whose wiki also has links to the briefs.
Posted by marykeating on January 1, 2010 under Unemployment compensation |
The Court of Special Appeals recently granted unemployment benefits to a woman whose claim had been rejected by a hearing examiner, the Board of Appeals, and the Circuit Court. Pursuing this many appeals is not easy, nor inexpensive, but the effort will help others, not just the unemployed claimant in this case.
Michelle Parham worked for several months for Mid-Atlantic Baking Company. She called in sick one day early in her tenure, then again for two consecutive days. Upon her return, her supervisor gave her a write-up, with the box marked “termination” checked. Another company document states that Ms. Parham walked out without clocking out, and thus was labeled a voluntary quit.
It is difficult but not impossible to obtain unemployment benefits if one quits a job; the reason for quitting is crucial. In this case, though, Ms. Parham contended that she was fired, and the company claims that she was told to speak with a higher up supervisor, but instead, left the plant without ever contacting the company again. The dispute centered completely on what was said at the final meeting between the employee and the manager on duty.
The manager on duty did not attend the hearing. Instead, two employees who were not at the plant on Ms. Parham’s last date testified that she had been instructed to call the department supervisor, but instead walked out. Their testimony was not based on personal knowledge, nor was it apparently based on discussions with the manager on duty. Hearsay testimony, in which one person reports on what someone else says and offers it for the truth of the report, is allowed in unemployment hearings. On the other hand, the hearsay testimony must give some indication that it’s reliable. Mid-Atlantic failed to convince the court that its hearsay testimony, which contradicted both Ms. Parman’s testimony and the document indicating her termination, was not reliable enough to uphold the denial of benefits.
In litigation, companies often produce after-the-fact explanations of an employee’s departure. This comes up frequently in discrimination cases, in which the reason for a termination is discriminatory bias or some legal explanation focusing on the employee’s faults. To buttress its case, Mid-Atlantic should have brought the manager on duty as its witness, since she had personal knowledge of the discussion. By leaving her out of the loop, Mid-Atlantic produced insufficiently strong evidence to support its version of the facts.
