Thursday, January 29, 2015

Sak’s Fifth Avenue Under Review For Transgender Policies

New York’s attorney general is investigating how Sak’s Fifth Avenue treats its transgender employees. This investigation comes as a result of a former employee’s lawsuit against Sak’s claiming that she was harassed and fired over her transgender identity.

The lawsuit triggering this investigation is in Houston, Texas. Leyth Jamal alleged that managers referred to her as a man and directed her to use the men’s restroom. She was also pressured to dress in a more masculine manner even though the management was aware of her transgender status. Sak’s fired Ms. Jamal shortly after she filed a discrimination complaint with the EEOC. Apparently, Sak’s response to the lawsuit has been to assert that transgender discrimination was not protected under federal law.

The attorney general has asked for documents reflecting all anti-discrimination policies for Sak’s New York employees. He is also seeking details on the process for employees to file harassment or discrimination complains as well as the training materials used to educate employees on preventing workplace harassment. The attorney general’s letter further asserted that the Justice Department and EEOC protect transgender employees from harassment and discrimination.

Wednesday, January 28, 2015

Reminder: Employees on FMLA Leave Are Not Supposed to Work

Joan Smith investigated ethical violations for Genon Energy. She had mixed performance reviews but did receive a recent raise. Then, Ms. Smith developed a cyst on her neck that she was advised to remove as quickly as possible. Concurrently, her mother was having health problems and Ms. Smith had to take care of her. Ms. Smith requested intermittent leave to take care of her mom. Her supervisor’s response was hostile and she was upset according to Ms. Smith. The leave was granted even though the supervisor was purportedly making it difficult for her.

Ms. Smith next went on full leave to have the cyst removed. It is alleged that during this leave, Ms. Smith was called and emailed with work assignments, including updating compliance cases, revising a safety review project, and dropping off files at the office. Ms. Smith asserted that she worked 20 to 40 hours while on full leave. When she returned from leave, Ms. Smith was put on a previously prepared coaching plan to improve her performance. Ms. Smith resigned, pointing to a hostile work environment based on her FMLA approved absences and because she believed that she was going to be fired.

The Texas district court noted that “…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.” Ms. Smith had presented sufficient evidence to show FMLA interference based on the amount of work performed while she was on leave to allow her case to proceed to a jury.

Tuesday, January 27, 2015

NLRB Upholds “Perceived” Concerted Activity

David Rivera-Chapman worked for Alternative Energy Applications, Inc. for $9.00 per hour. Mr. Rivera received a $1 per hour raise just a few weeks into his employment. Most employees had to wait at least six weeks for a raise, so his supervisor told Mr. Rivera “I do not want you talking to anyone else about this because we have fired employees in the past for talking about their wages.

For the following two months, Mr. Rivera complained repeatedly about his pay and working conditions. In addition, Mr. Rivera was not considered a particularly good employee. On two separate occasions, Mr. Rivera put this foot through the ceiling on the jobs where he was installing insulation. According to the company, Mr. Rivera was fired because he did not fit with the company’s philosophy and because co-workers complained about working with him.

The NLRB concluded that the instruction not to discuss wages violated the NLRA’s protection for employees engaged in concerted activity. Moreover, the NLRB also found that the company fired Mr. Rivera because it believed he had in fact discussed his wages with other employees. Any discussions about wages were “inherently concerted” activity even without evidence of “initiating, inducing or preparing for group action.” This belief about Mr. Rivera’s wage discussions was proven via a letter submitted to OSHA by the company. In that letter, various reasons for firing were put forth including that he “undercut morale” by talking about his rate of pay. The company’s proffered reasons for termination to the NLRB were insufficient without demonstrating that it would have terminated him absent its belief he was discussing wages.

Thursday, January 22, 2015

Legal Secretary Has Scandalous Story of Harassment to Tell

Dasschinka Storani was a legal secretary for the firm of Arnstein and Lehr in their Fort Lauderdale office. Former managing partner Alan Kipnis was the alleged harasser.

Mr. Kipnis, if the allegations are true, engaged in a frequent stream of “vulgarity, profanity and abusive behavior” constituting sexual harassment. For example, he stated: “If I was 30 years younger, what would I do to you” and “I’ll know when I lost enough weight when I can see my penis.” Mr. Kipnis was accused of speaking with Ms. Storani about the sex life of other partners, including one who purportedly could not perform sexually and fathered a child by another legal secretary in the firm. Ms. Storani also alleged that Mr. Kipnis demanded that she “inject him in the buttocks with vitamin B-12” as his wife would not do it. Ms. Storani also claimed that Mr. Kipnis required her to be available to him 24/7 to assist if needed. Ms. Storani claims that the law firm was aware of his conduct but failed to stop it because he brought a lot of money into the firm. Another legal secretary, who claimed she left because of the environment, wrote a letter complaining about Mr. Kipnis and another partner.

Arnstein and Lehr conducted an investigation following the receipt of the letter. Ms. Storani was included in the investigation. Mr. Kipnis was forced to leave the Fort Lauderdale office. Ms. Storani alleged that Mr. Kipnis retaliated against her after leaving by subjecting her to verbal abuse, lewd comments, fraudulent receipts and billing entries. In the end, Ms. Storani was fired for “stealing time.” Ms. Storani responded that the time alleged was when she was working remotely as demanded by Mr. Kipnis. Ms. Storani is suing for back pay, front pay, compensatory and punitive damages. The firm denies any basis for liability.

Wednesday, January 21, 2015

Change in Criminal History Standard Justified Termination

When Thomas Dade applied for a job with GRA-GAR, he checked off the criminal history box on the application. He had a prior conviction for marijuana possession. Mr. Dade was hired notwithstanding his conviction.

Around a year after his hire, the employer began to experience an increase in criminal activity such as theft of employee tools and cargo from the tractor-trailers stored on the premises. There was also vandalism. Believing that the crimes were being committed by the company’s own employees, GRA-GAR made changes including heightening the hiring standards for new hires, changing the locks, and installing more security cameras. When the vandalism and theft did not decrease sufficiently, the company increased scrutiny of its current work staff. Any employee with a criminal history would be allowed to continue working only if they met the new more restrictive standards. A variety of criteria would be used to decide if the criminal record warranted termination. Mr. Dade was fired along with six others.

Mr. Dade sued for race discrimination. As he was replaced by a white worker, Mr. Dade was able to make a prima facie case of discrimination. However, the company had a legitimate non-discriminatory reason for terminating him. Mr. Dade did not argue that the termination was a pretext for discrimination so his case was lost in summary judgment.