Posted by marykeating on August 31, 2009 under Workplace privacy | 
The typical modern worker uses email and the internet for lots of work and personal reasons. Sometimes the purposes of those uses blur; certainly the time spent on the internet is often a mixture of personal and professional. It seems almost effortless to multi-task, and we can handle a query for work together with a quick look at the deal of the day on Amazon.com.
The Problem for the Corporation.
But the typical modern corporation grows ever more concerned about its exposure by computer use, and for good reason. Sexual harassment can arise easily with the help of technology. Consider these examples, all from recent cases of mine: a man watches internet pornography on a computer in a cubicle (sound travels); emails with links to risque videos are misaddressed to someone who finds them offensive; email jokes with offensive racial or sexual content make the rounds through a company through that easy “forward to” function. As soon as the company finds out, it needs to act. An effective way to deal with sexual harassment claims can be to fire the harasser. If the entire place is infected, though, the company may instead put strict limitations on the use of its equipment.
The Extent of Corporate Surveillance.
As a result of the dangers of computer misuse, coupled with the incredible array of time wasters available on the internet, some companies have instituted a zero tolerance ban on personal use of the company computer system. Others are more realistic, recognizing that employees who work more than eight hours per day may need to engage in internet shopping, check with the children, or just relax for a few minutes. According to a study by the American Management Association published in 2008, more than half of the employers surveyed monitored and reviewed website connections, almost two-thirds blocked access to certain websites, and a quarter monitored the time spent and the phone numbers called on company phones. A quarter of employers also used video surveillance to counter theft, violence or sabotage.
Even if you are working harmoniously with your employer, the lack of privacy has other impact. Some employers use keystroke loggers, which can measure productive work, but also record passwords, emails, and the like. Even when the level of intrusion is lower, an employee needs to remember that an IT department employee can often read electronic traffic through the company’s system, even when the employee is utilizing his own, non-corporate email account. That is, an employee who logs onto his yahoo email account may inadvertently leave tracks that allows the employer to read the message sent, if not messages received. You have to remember that the corporation is made up of individuals, and they may not all be nice people. If it’s easy to intercept your facebook password, someone may use it to mischief or worse. Your password to your on-line banking account may be revealed to the IT department if you pay your bills online.
Why Employees Need to Monitor their Own Behavior.
A significant percentage of employers who engage in recording their employees’ computer use, phone calls, or movements do not tell employees that they are doing it. Others mention it in the policy handbook, but not otherwise. Under the Maryland Wiretap law, recording workplace phone conversations without consent is legal if the recording apparatus is part of the company’s telephone equipment and there is a business reason for recording conversations, such as evaluating employees’ interactions with customers. This same law probably makes video and audio surveillance illegal, but not video-only surveillance.
Regardless of the degree of corporate tolerance, the employee should keep vigilant in using the employer’s system, remembering that he is a guest in the employer’s house. You may feel at home in your office, but it is a mistake to assume that interaction done quietly on a company’s system will necessarily remain private. Some of my clients, for example, have made the mistake of sending emails to me from their company email account. Notifying a lawyer that you are unhappy about your work treatment is especially problematic. You may forfeit the attorney-client privilege and reveal your private communications to the very company you mean to pursue.
To protect yourself:
- use your own cell phone;
- if the blackberry belongs to the corporation, assume it can read what you put on it;
- assume your email is being monitored — engage in personal email from home;
- don’t search for adult, pornographic, or sports sites at work;
- don’t use your company computer to do your banking or other financial transactions;
- ask if you are being recorded or monitored;
- if you blog or comment about your employer, do not assume that your comments will necessarily stay anonymous (more about this later).
Posted by marykeating on August 30, 2009 under Uncategorized |
This blog was just featured by Tom Mighell’s inter-alia collection as the blawg of the day. If you are not familiar with Tom’s work, the website is up-to-date, comprehensive, and valuable. The email by subscription “Internet Research Weekly” is always entertaining, full of blawgs, tips with software, and at least a couple of great ways to waste your time on games or puzzles. Thanks for all the education you’ve provided, Tom, and thanks for publicizing this site.
Posted by marykeating on August 28, 2009 under Employment benefit issues, Pending legislation |
The Baltimore Sun reported last week on the plight of small employers in the Baltimore area, and the cost of health insurance. Without market power, small businesses have a difficult time providing health insurance to employees. Still, it’s a very popular fringe benefit, and most people believe having health insurance indispensable. That is, until they can’t afford it.
I commented on this last month. Small businesses not only have smaller profit margins, often, but also have less favorable access to affordable health coverage. The new article by Jay Hancock cites this sobering statistic: “in metro Baltimore, … CareFirst and UnitedHealth control nearly 80 percent of the trade. That’s not a market. That’s oligopoly – market failure.” Anecdotally, the article notes that the number of companies offering health insurance for small businesses has diminished, and the rate of increase is in double digits annually, far higher than inflation.
The market conditions create a prescription for failure. I’m dismayed that the public health insurance option appears to be dying in Congress.
Posted by marykeating on August 27, 2009 under Discrimination in employment, Pending legislation |
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military. One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule. Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions. USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate. The law applies to virtually all employers, without the typical threshold number of employees.
Still, the number of claims in this region is not huge. There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim. One reason could be the difficulty of proving discrimination in hiring. Proving discrimination at all is seldom easy, but hiring is particularly difficult. In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination. In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.
Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service. The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities. The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June. It is before the Senate now.
Posted by marykeating on August 19, 2009 under Collective rights, Wage and hour issues |
President Obama may have difficulty distancing his administration’s policies from the past era in national security issues, but not so in the labor agenda. One of the President’s early executive orders (13496, issued on January 30, 2009) required companies doing business with the federal government to notify their employees of their rights under the National Labor Relations Act. The NLRA governs union activities, as well as any collective action among employees even in non-union shops.
The Department of Labor now has proposed a rule to implement the Executive Order. The rule describes the notice that federal contractors must post. The preamble highlights the shift from Bush to Obama leadership:
It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.
The proposed rule also determines that the posting requirement, as well as the requirement to place the wording in all contracts, applies to subcontractors of the federal contractors. . The rule applies to all federal contracts worth more than $100,000. The Department estimates this rule will reach more than 65,000 prime contractors, each of which has an average of three subcontractors. Some of these subcontractors, of course, work on more than one prime subcontractor’s job. The rule does not apply to state and local governments, which are exempt under the National Labor Relations Act.
The posting requirement expresses faith that more information is all employees need to insist on their rights. Anecdotally, I believe there is some truth to this assumption. Employees with wage and hour complaints often state that their employers did not make the required posting regarding minimum wage, or that it was inaccessible to the employees. It is easier to make a claim that an employee is not covered by the law if the law is not described in the lunchroom.
This posting does seem calculated to describe rights and to inspire employees to use them. The list of rights under the NLRA is described as follows:
- Form, join or assist a union.
- Bargain collectively through a duly selected union for a contract with your employer setting your wages, benefits, hours, and other working conditions.
- Discuss your terms and conditions of employment with your co-workers or a union; join other workers in raising work related complaints with your employer, government agencies, or members of the public; and seek and receive help from a union subject to certain limitations.
- Take action with one or more co-workers to improve your working conditions, including attending rallies on non-work time, and leafleting on non-work time in non-work areas.
- Strike and picket, unless your union has agreed to a no-strike clause and subject to certain other limitations. In some circumstances, your employer may permanently replace strikers.
- Choose not to do any of these activities, including joining or remaining a member of a union.
Perhaps even more critical to the goal of disclosing information to employees is the list of illegal activities by employers.
It is illegal for your employer to:
- Prohibit you from soliciting for the union during non-work time or istributing union literature during non-work time, in non-work areas.
- Question you about your union support or activities.
- Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in other activity for mutual aid and protection, or because you choose not to engage in any such activity.
- Threaten to close your workplace if workers choose a union to represent them.
- Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
- Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances, for example, as where doing so might interfere with patient care.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so.
The rule goes on to state:
It is illegal for a union or for the union that represents you in bargaining with your employer to: discriminate or take other adverse action against you based on whether you have joined or support the union.
Comments to this proposed rule are due by September 2, after which the rule will be modified or may go into effect shortly thereafter.
Posted by marykeating on August 18, 2009 under Constructive discharge, Race-based discrimination, Racial harassment, Sex-based discrimination, sexual harassment |
In sexual and racial harassment cases, one of the most difficult decisions an employee can make is what to do when the employer is insufficiently responsive to complaints. It’s safe to say that employers have all learned to parrot the lines “we take allegations of sexual harassment seriously,” and “racial comments are not tolerated in this workplace.” But sometimes they are. When an investigation is cursory or a farce, the complaining employee is often faced with escalated harassment, as the bullies realize they are winning, and are not happy that she called in the higher ups. If the harassment is sufficiently severe and the employee cannot tolerate the atmosphere anymore, is she free to quit? If she continues to go to work, is the atmosphere perhaps not that abusive after all? The idea of constructive discharge is commonly rejected by courts.
This is the essential conflict in the case of the Equal Employment Opportunity Commission v. Central Wholesales, Inc., a company in Laurel, Maryland. A three year employee transferred to a new department and immediately was subjected to severe racial and sexual harassment. Her coworkers used the “b” and “n” words daily, a man in an adjacent cubicle had a pornographic screensaver, and when his screen wasn’t being saved, he was watching pornography on it; the employee had to listen to it. Two male coworkers kept mop-haired dolls in nooses in their offices. She complained to the coworkers, then to her supervisor, then to the president of the company, and finally to her former supervisor. For the most part, nothing was done, and her supervisor even made a joke of her treatment. At that point, the employee left the job and was unable to return.
The EEOC brought suit on her behalf. The trial court held that the employee was not harassed as a matter of law. It decided that the sexual harassment was not severe enough, and that the employee left her job before the company could remedy the racial issues. The Fourth Circuit, often not a friend of the employment discrimination plaintiff, reversed the decision.
Under the law of harassment, an employee needs to show that the harassment was both objectively and subjectively hostile and abusive. That is, the employee must have found the atmosphere upsetting, and a reasonable person in her position would also have done so. Under the Fourth Circuit’s precedent, plaintiffs must clear a “high bar” to show that the objectionable conduct was severe or pervasive. In other words, to make out a case of sexual or racial harassment, the plaintiff has to show that there was so much unwelcome, racially or sexually charged conduct that the employment situation was altered, poisoned.
In this case, the employee did make enough of a showing that she is entitled to a trial. It is not easy to bring all the elements together, especially when the employee leaves the workplace. But at least here, the employee’s dilemma, of staying in a toxic environment for the sake of her lawsuit or quitting and preserving her mental health has not doomed her opportunity to make her claim.
Posted by marykeating on August 13, 2009 under Wage and hour issues |
Both private and public employers have been experimenting with cutting back employees’ hours instead of choosing some for layoff. The benefits of this strategy include sparing some of the employees from the devastation of a full layoff, improving morale, and saving on the severance or unemployment benefits costs of laying off employees. For employers expecting to bounce back as the recession eases, keeping the employees also will make it easier to spring back into action. Employees are not likely to enjoy the cut in pay, but some may make good use of the extra time.
This practice works most smoothly for hourly employees, who must be paid for all hours worked, at least minimum wage, plus overtime pay. If an employee who used to work five full days per week is reduced to four, the employer must pay him for the four days. This strategy can backfire if the furlough is in name only. If employees actually are working on the days when they are supposed to be off, then the employer is in danger of violating the Fair Labor Standards Act and Maryland’s Wage Payment and Collection Act. Actual work includes checking email and voicemail messages, responding to customers or coworkers, and waiting on call in some instances, depending on the amount of freedom the employee has while waiting to be called into action. If the employee often works from home or from the other end of a telephone or blackberry, the employer needs to be vigilant to be sure that the employee is not responding as usual on a furlough day.
Exempt employees pose a more difficult problem. An employee exempt from overtime compensation requirements must meet responsibility requirements, as well as the salary test, in which the employee must earn $455 or more per week. If the employee does any work during a week, the entire week’s salary must be paid. An exception is made if there is a sick or personal leave policy; in that case full (not partial) days of sick or personal time, or days on which the employee does not work because of disability, may be deducted from pay, with personal/sick leave to fill in the gaps if it is available. The employee’s leave balance can also be used to supplement the employer’s “sick” time, days in which there is not enough work.
In other cases there is not enough sick or other leave time to pay for furlough days, or the employer simply cannot afford to keep so many exempt employees on full-time status. Then to furlough an exempt employee in the private sector, the employer has to cut the employee’s pay. In Maryland, employees are entitled to two week’s notice of a salary reduction. And the new pay may not be less than $455 per week. An employer risks losing the exemption when it violates the rules about deductions from pay.
Posted by marykeating on August 8, 2009 under Wage and hour issues |
Maryland’s general assembly passed the Workplace Fraud Act this year, with an effective date of October 1, 2009. The law addresses the costs to the state and others of employers’ characterizing workers as independent contractors, when they are actually employees.
An employee, unlike an independent contractor, is covered by workers’ compensation insurance and unemployment insurance, as well as many laws forbidding discriminatory actions in the workplace. In addition, an employer pays FICA contributions based on 7.65% of the employee’s pay, while an independent contractor pays that amount to the federal government in the form of self-insurance tax. The additional direct financial effects, as well as the anti-discrimination protections, explain why some employers prefer to treat their employees as independent contractors. And certainly as the title of the law indicates, there has been abuse of the system. Governor O’Malley’s July 14 executive order states that audits show that about one out of five Maryland employers misclassifies employees as independent contractors. On the other hand, in certain arrangements, the line between employee and independent contractor is not easy to draw. Moreover, the line may be drawn differently depending on whether state or federal law applies. The new law attempts to clarify just when a worker is exempt, or may properly be classified as independent.
This new law specifically targets only the construction and landscape service industries. The misclassification of an employee as a contractor is still illegal and subject to enforcement activities in other industries; the Department of Labor, Licensing and Regulation has taken action to require employers to pay unemployment insurance contributions on its workforce if the Department finds that the workers were illegally categorized. Under this law, however, as well as the recently issued executive order from Governor O’Malley, the enforcement mechanisms are beefed up and backed up with some funding. The newly constituted task force will investigate and coordinate with the federal government and businesses, including suggesting ways to improve enforcement efforts.
The new law also imposes a civil penalty of up to $5,000 per misclassified employee, which amount is subject to doubling for a second offense and quadrupled for a fourth offense. In addition, all employees found entitled to restitution will be granted an award, which may be tripled, as for violations of wage and hour laws. Retaliation against employees for making complaints about violations of the law is prohibited.
If no state agency takes action, or if the action is pending, an individual who was harmed by a violation of the act can bring his or her own civil suit, and seek trebled damages and attorney’s fees. The lawsuit is unavailable if a final order or judgment of the Office of Administrative Hearings or a court has been entered on the same facts. The private right of action is important since, even with additional funding, if fully 20% of Maryland employers are misclassifying employees, then the executive branch cannot prosecute every violation.
Posted by marykeating on August 4, 2009 under Employment at will |
According to an article in today’s New York Times, the difficulty of bouncing back from a layoff turns out to be permanent for many workers. The article quotes an economist whose longitudinal study of workers laid off in an earlier recession, in and around 1982, proves statistically what many feel: in many cases, the middle-aged, middle income worker loses a job, and never regains his original wage level. The study concludes that people who stayed in one job the longest were hardest hit, perhaps because they had become such specialists. Not only that, those who had been laid off once were more likely to face the same fate in the next economic downturn, since their tenure was shorter.
I do not have the economic chops nor remember enough about statistics to evaluate the methodology, though it certainly seems to have been thoroughly considered. The authors primarily focus on men’s experiences, but decide that women’s experiences track the same way.
The authors of this study do not take on the challenge of suggestions for an individual to escape the 20% long-term earnings reduction that befell the average laid off worker. From a societal perspective, however, they note the following:
In particular, while the ability to fire ‘at will’ may benefit adjustment in
the labor market as a whole, the costs in terms of lost productivity and earnings of individual
workers may be much higher than typical replacement rates of unemployment insurance or
other programs designed to smooth temporary earnings fluctuations.
(See page 20 of the study).
I haven’t been hearing a groundswell of support for enacting a termination with cause standard, and don’t expect it to begin in Maryland. So, in the meantime, employees need to keep in mind that loyalty to an employer is largely a one-way street. Recommendations on avoiding a permanent reduction in a standard of living after a layoff include things that your mother told you, and things your geeky nephew can tell you. Mom would say live below your means, you never know how long the good times will last. And Stan the high- tech man can teach you to leverage social networking like LinkedIn (here is my profile) and other sites, and to keep track electronically of your friends and acquaintances, so you can get a great job search going when you need to.
Posted by marykeating on August 1, 2009 under Discrimination in employment, Pending legislation |
The Employment Nondiscrimination Act of 2009 has been introduced into Congress by Representative Barney Frank, and a host of cosponsors. The cosponsors include Representatives Elijah Cummings, Chris Van Hollen and Donna Edwards of Maryland. The bill would outlaw employment discrimination based on gender identity, defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” In addition, discrimination based on the employee’s actual or perceived sexual orientation, including homosexuality, heterosexuality, or bisexuality, would be prohibited.
The wording of the bill tracks the Civil Rights Act of 1964 pretty closely, so that it applies to employers with at least 15 full-time employees engaged in interstate commerce (nearly every employer qualifies, but there are some exceptions), and state, local and federal government. It prohibits retaliation, using the same language as in the law protecting against race and sex discrimination, and provides for the same enforcement mechanisms by the Equal Employment Opportunity Commission (the EEOC). It is clearly attempting to incorporate the case law of the 1964 law, to avoid a case like the Gross case, in which the Supreme Court made it so difficult to prove age discrimination. (I commented last month on this case. )
The cause of gay rights has been slowly advancing, despite some dramatic setbacks. In the employment arena, though, it is difficult intellectually to separate discrimination based on gender with discrimination based on gender identity, or sexual orientation. In essence, the discriminator is inflicting on certain employees their antiquated attitudes of what a man or woman should be, and should do. In the most barbaric situations, these attitudes dictate that the woman should stay home, or should work and submit to the boss’s sexual advances. In the more subtle (and more commonly seen) instances, the attitudes may be more along the lines of: a woman is less serious about her job; a gay man is constantly desiring all the other men in the office; the senior people should all be athletic married men; the women should dress in a feminine manner and obsess over their appearance. None of these gender stereotypes is related to the ability to perform a job, and they often interfere, in the case of harassment, with the employee’s ability to function.
These similarities notwithstanding, gender equality has taken more root than gender orientation equality, and there are still some areas where rhetoric threatens to derail a perfectly reasonable bill. The pending bill therefore specifically addresses certain societal concerns that are brought up, whether legitimately or as scare tactics, when the question of equality on gender orientation or identity grounds arises. For example, the law would give special exemptions to church-related employers and the military – both still free to discriminate on the grounds of gender orientation. Secondly, the protections of this law cannot be used to argue that an unmarried couple be given the same rights as a married couple to employee benefits. In addition, the law specifically provides that a person accused of sexual harassment is not insulated from such an accusation by the anti-discrimination provisions. This should go without saying, therefore I suspect that the caveat was added to avoid opposition based on some argument that homosexual employees are likely to harass others. Of course, since the bill covers heterosexuals as well, maybe it’s just as well to short-circuit some sexual harasser’s cynical defense to liability based on his rampant heterosexuality. Finally, the law would prohibit the collection of statistics on the prevalence of gender orientation or identity by employers or the EEOC.
A more sensitive provision addresses the provision of facilities in which being unclothed is unavoidable, such as locker rooms. The employer would be required to provide “reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.” The employer need not provide new facilities under this law. This is similar to the expectation that a person chooses a gender identity for purposes of which restroom to use; if the employee is in transition from one sex to the other, then the employee chooses a point at which the identity has changed, and uses the other facilities.
I can’t predict whether a law will be passed; I’ve failed at that game too often. Still, the time seems right. The Maryland anti-discrimination law,
providing for access to state courts, in effect since October 2007, covers gender orientation. It is time for the federal government to make it nationwide.
