Wednesday, October 22, 2014

California Employers: Anti-Bullying Now Part of Your Responsibility

California continues to expand the scope of an employer’s responsibilities by now including anti-bullying as part of sexual harassment training.

Current California law mandates that employers with over 50 employees must provide two hours of sexual harassment training and education at least every other year. That mandate will soon include training to prevent “abusive conduct.” “Abusive conduct” will be defined in the California Fair Employment and House Act as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to legitimate business interests.” Some of the examples provided are: “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Generally speaking, a single act is unlikely to be sufficient unless particularly egregious.

This new law, only a mandate for training, created no unique cause of action for “abusive conduct.” However, abusive conduct in the context of discriminatory acts directed at member of a protected class could be part of a lawsuit.

Thursday, October 16, 2014

California Becomes First State to Pass New Data Breach Law

Employers in California must now be aware of their increased legal responsibility toward employees who have had their data breached.

California companies were already required to notify all individuals impacted by a data breach. The amended law expands that obligation, requiring that the source of the breach offer “appropriate identity theft protection and mitigation services” at no cost to California residents impacted by the breach. These services must be provided for 12 months following the breach. The language of the statute does not clarify what those “appropriate” services might be.

A breach that includes data that all employers maintain such as names, Social Security numbers and driver’s license numbers, will trigger the obligations of the statute. Data breaches have been all over the news and, in fact, one study concluded that 43% of companies experienced breaches in just the last year.

Wednesday, October 15, 2014

Most Surprising Result of Customer Service Complaint

A California resident by the name of Conal O’Rourke was having some problems with his cable provider, Comcast. He complained like everyone does to the Customer Service representative. There were problems with billing such as erroneous charges, bills that never arrived, and discounts that were not applied. He called to cancel the service but Comcast convinced him to stay with promises of free perks. Instead, Mr. O’Rourke received a bill for $1,820 of equipment he had not ordered. Now Mr. O’Rourke was really angry. He skipped over the customer service department and went straight to the Comcast controller.

It was during this call that the situation took an unexpected turn. Mr. O’Rourke, an accountant at PriceWaterhouseCooper (PWC), suggested to the Comcast controller that its billing practices should be subjected to a Public Company Accounting Oversight Board Investigation. In reaction to this call, someone at Comcast contacted a partner at PWC, which led to an ethics investigation. The result: Mr. O’Rourke lost his job. The sides disagree as to whether Mr. O’Rourke had identified himself as an employee of PWC during his discussion.

Comcast admits that it contacted PWC. It claims that: “Comcast communicated to PWC that a person claiming to be a PWC employee had called our chief accounting executive’s office with complaints about his cable services and bills, and yelled at our employees who tried to assist him.” PWC does not audit Comcast’s books but they do provide consulting services to the cable provider. PWC claims it fired Mr. O’Rourke because he did not comply with its policies pertaining to employee conduct. Comcast has apologized, but only for its poor cable service.

Tuesday, October 14, 2014

Sexual Harassment Huge Problem at Restaurants

A new report about the treatment of women in restaurant jobs was recently released. Ninety percent of women questioned reported that they were subjected to sexual harassment. The greater concentration of harassment occurred where the women had tips as a significant portion of their income. The National Restaurant Association has dismissed the report as part of a national campaign to disparage the industry.

The 34 page report entitled “The Glass Floor: Sexual Harassment in the Restaurant Industry” was compiled with the help of many women’s and workers’ rights organizations. The female tipped restaurant workers were subjected to “very high rates of unwanted, scary sexual behavior in the workplace.” To get tips, these female workers felt like they had to dress and act in ways that may make them more vulnerable to harassment by customers, co-workers and managers.

Apparently, women living off tips in states with a $2.13 per-hour tipped minimum wage are twice as likely to be sexually harassed as women working in states that require a full minimum wage for workers. These same $2.13 workers was three times as likely to be told to dress “sexier” by their supervisors. A third of female workers reported experiencing sexual harassment from customers on a weekly basis and three-quarters of these workers experienced that harassment from their co-workers on at least a monthly basis.

Thursday, October 9, 2014

Picking One Tribe Over Another is Not Always Discrimination

Peabody Western Coal Co. has mineral leases on Navajo land which require that it give hiring preferences to members of the Navajo Indian tribe. Members of the Hopi and Otoe tribes filed charges of the discrimination with the EEOC after they were denied jobs because of their tribal membership. The EEOC filed a lawsuit on their behalf.

The EEOC’s argument was that Peabody was engaging in national origin discrimination by giving preference to Navajo tribal members rather than members of other Indian communities. Peabody responded that this tribal preference was mandated by the terms of the mineral leases; terms that had been approved by the federal government.

The Ninth Circuit Court of Appeals reviewed the claim and rejected the EEOC’s argument. Tribal affiliation is a “political classification” rather than one based on national origin and thus is not protected by Title VII. It was noted that in some instances distinguishing between tribes would give rise to national origin discrimination. However, in other situations federal law must yield to respect for treaty rights or the federal policy fostering tribal self-governance. This case reflected an instance where tribal self-governance was involved.

Wednesday, October 8, 2014

Good Work History Bolsters Claim for Discrimination

Iris Wilkie worked for Geisinger System Services for 10 years without any performance problems or adverse action. However, in that 10th year, a new supervisor came on board and with the hiring of the new supervisor came some new issues. The supervisor reported that complaints had been made about Ms. Wilkie’s work, she was thereafter coached, subjected to a formal disciplinary action, and put on a performance improvement plan three times before being ultimately fired.

In the subsequent lawsuit, Ms. Wilkie asserted that the true basis for all the above was the fact that she was German. Her direct supervisor, and supervisor the next level up, told her that they were “not fond” of Germans. Ms. Wilkie also stated that both supervisors mentioned Hitler at work and referred to the one of the supervisors as “little Hitler.” She was told not to speak German on the phone, had her accent mocked, and the supervisor insisted that Ms. Wilkie’s calls be screened because her “English is too bad to write.” Ms. Wilkie believes that she was set up to fail once the new supervisor was hired.

The Pennsylvania district court denied the employer’s motion for summary judgment. The comments by the supervisors, who played a role in her termination, were enough to suggest discriminatory animus. Although the employer had offered a legitimate reason for termination, the evidence by Ms. Wilkie was enough to show it could be pretextual. The references to her language may also be a reflection of national origin discrimination. The fact that Ms. Wilkie had worked for the defendant so long without any problems also could give rise to a finding of discrimination. The court noted that the supervisors were German American but indicated that it did not entitle the employer to judgment as a matter of law.