A Quick HR Limerick

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In honor of St. Patrick’s Day (and being 1/4th Irish),  I offer this limerick as a cautionary tale to all human resources professionals dealing with litigious employees and bad bosses:

There once was an employee named Jill
Her job left her feeling quite ill
Her touchy boss wouldn’t stop
Brushing against her top
So she called HR Manager Bill

Old Bill hailed from the heartland
Fond of PBR and polka bands
Sloppily investigated Jill’s claims
Assigned the boss no blame
Jill quit and made legal demands

Still other employees complained
Of discrimination, harassment and pain
About poor communication
And denials of vacation
But, alas, the reports were in vain

For the boss was a tough taskmaster
His people skills a disaster
Get the damn work done
It’s not a charity that he runs
Nor was it his job to flatter

Then came an employee named Jake
Not enough money did he make
He and a hundred others sued
Seeking overtime wages due
His lawyer bought a mansion on a lake

Though HR’s plate was already full
Lawsuits and claims took their toll
Job duties pushed aside
To fight the legal tide
Company morale sunk exceedingly low

A dark knight heard the discontent
Swaggered in, spewed promises, and went
Employees sniffed the hot air
Were enchanted by the aroma of fair
And unionized the establishment

Then, despite trying his best
Bill was often second-guessed
Monday morning quarterbacks
Made him slow to react
So Bill retired and moved southwest

 

 

 

 

Four Recent HR & Employment Law Developments

As those working in human resources and my fellow employment lawyers can attest, the last few years have given us constant change.  New employment laws, new labor regulations, federal agencies aggressively enforcing both, and significant cases being issued almost daily make it tough for even the most seasoned “HR Genius” to keep on top of all of the developments.  I try to lighten the load through this Blog, but like you, only have so many hours in the day.

So,  this week I am going to lean on my management-side employment law colleagues at Michael Best & Friedrich.  Below are just a sampling of the recent articles and “client alerts” they have authored recently:

1.  Wisconsin just enacted its “Right-To-Work” Law.  What does this mean for employers in Wisconsin? Click here.

2.  The Department of Labor just issued its Final Rule revising and expanding the definition of “spouse” to include those from same sex marriages.  For more details, click here.

3.  Utah just enacted a new law prohibiting discrimination against employees on the basis of their sexual orientation and “gender identity.”  If you have operations there, then you should  click here.

4.  Do you know what constitutes a valid employment claim “release,” and when you can lawfully “require” employees to sign them?  For this information and more, click here.

Hopefully you will find these helpful in your quest to becoming (or remaining) an “HR Genius.”

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

 

Lies, Damn Lies and (EEOC) Statistics

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“98% of all statistics are made up”  ~Author Unknown

On February 4, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2014 Enforcement and Litigation Data”  report (“EEOC Report”).  The EEOC Report, chock full of statistics regarding employment discrimination charges brought against employers under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other Federal statutes, is a statistician’s dream.

As Mark Twain reportedly said, however, “facts are stubborn things, but statistics are pliable.”   Perhaps not surprisingly then, the EEOC Report can be interpreted to contain good and bad news for employers:

Good news:  The total number of discrimination charges filed against employers actually fell almost 5% in fiscal 2014 from the year prior.
Bad news:     There were still 88,778 EEOC discrimination charges filed against employers in 2014. (This does not count state and local charges).

Good news:  In 2014 the EEOC dismissed 65.6% of the discrimination charges during the investigation stage.
Bad news:     In 2014 the EEOC recovered over $318 million from employers through its enforcement, settlement and litigation efforts. 

Good news:   In 2014 age discrimination charges dropped almost 20% from their peak in 2008.
Bad news:     Retaliation claims reached an all time high, comprising nearly 43% of all discrimination charges.

Good news:  The EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and no settlement is reached.
Bad news:     The EEOC filed 133 “merits” lawsuits across the country, and claims a 90% success rate at resolving matters in district court.

Hopefully 2015 will only bring your company good news.  Decrease the possibility of bad news by adopting some human resources “best practices”  found here and here.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws 

 

Better Call Saul

“You were smart to call me. Now you just sit back, relax and let a professional take over.”             Saul Goodman – Breaking Bad

Saul Goodman, the street smart, delightfully sleazy criminal defense attorney from the ground breaking television drama, Breaking Bad, had a simple but memorable marketing slogan to attract clients – “Better Call Saul.”  Unfortunately for most of his clients (but good for Saul), they only called after they had gotten into trouble with the law.  It then became all about damage control.

But one client, Walter White, the cancer stricken high school science teacher turned virtuoso meth lab cook, often did call and consult with Saul before he took certain actions that he knew could potentially result in serious legal consequences.  Perhaps it stemmed from his scientific background, but Walter would often discuss options with their potential outcomes and associated legal risks with Saul before ultimately settling on a course of action.

Human resources managers would be well served to follow Mr. White’s lead in one limited respect.  (NO, I repeat, NO, not cook meth nor plan criminal acts).   Companies can reduce the possibility of significant monetary damages and legal expenses from employment law claims by investing a little time and money in consulting with their legal counsel about difficult employment situations before litigation is commenced. Below are just a few of scenarios where the “call to Saul” (or whoever your employment lawyer is) should be made:

  • An Employee (Or His Attorney) Makes A Personnel File Request.  The employee is not asking for her personnel file to check for spelling errors, or to make sure her emergency contact information has been updated.  The employee wants ammo, or better yet, the actual “smoking gun.”  The request is the legal equivalent of a warning shot across the bow.  An employment attorney can advise on how to respond to the request, including what not to provide, as well as establishing parameters to ensure the preservation of files and emails for future litigation.
  • The Employer Wants To Terminate An Employee Who Falls Into One Or More Protected Classifications.  As there are almost 100,000 discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) every year, a company who wishes to terminate an employee who falls into a “protected classification” such as age, race, gender or disability faces potential liability.  As literally every employee falls into some protected classification, the company should make sure that it has all of its legal ducks in a row before termination.  Talk through the facts, evidence and reasons for the termination with employment counsel, paying special attention to how the company has disciplined similarly situated employees not in the same protected classification(s).
  • The Employee Mentions The “L Word”.  Frequently employees claim that they are contacting a “lawyer,” or intend to file a “lawsuit.”  Although many times this is simply bluster, sometimes they actually follow through.  Regardless, the simple mention of these words greatly increases the likelihood of the employee filing a retaliation claim in the event the company takes an adverse employment action against him.  Any discipline or discharge that comes shortly after utterance of an “L word” will likely trigger the filing of a retaliation claim.  Bottom line – when an employee starts talking about his lawyer, you should probably call yours.
  • The Government Comes Knocking.  If you receive a letter, phone call or surprise visit from a government investigator representing OSHA, the Department of Labor, the EEOC, or OFCCP, contact your employment lawyer immediately.  Often, steps can be taken to narrow down the government’s burdensome requests for information, and secure adequate time to gather relevant information in order to prepare a coherent response.

Just like an ounce of prevention can be worth a pound of cure, a billable hour spent on one of the tricky employment situations described above could avoid potentially costly legal consequences.  Take a page out of Walter White’s (cook)book and make the call.

Mitchell W. Quick,
Attorney/Partner – Michael Best & Friedrich LLP
Suite 3300, 100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter@HRGeniusBar @wagelaws

Don’t Show Them The Money

“In God we trust.  All others pay cash.”

Companies:  Want to avoid throwing your money away?  Then don’t lend your employees any.

Unfortunately, people get into “money troubles” from time to time.  For some, unexpected medical bills or car repairs cause a temporary “cash flow” problem.  But for others, constant overspending leads to a permanent state of financial crisis.

Regardless of the cause, employees facing a pinch sometimes ask their employer for a loan or an “advance” on their wages.  The request often falls to the Human Resources (“HR”) Manager.  The HR Manager likes the employee and wants to help out.

So, despite not being a bank, or asking for collateral, or charging any interest (which state laws usually prohibit employers from doing anyway), the HR Manager approves the loan/advance.  The parties sign a simple re-payment agreement after the employee swears on his (not yet dead) mother’s grave to repay the loan in full.  And sometimes the employee does pay the loan back in full.

But other times the promise goes unfulfilled.  As an old proverb cautions: “A hundred wagon loads of thoughts will not pay a single ounce of debt.”  Oftentimes the wagon hits a series of potholes, forcing the company to confront a number of difficult scenarios:

Pothole #1:  The employee asks for a second loan before the first is even paid off. Do you double down? Do you really know what the loan is for?  Or are you just enabling additional self-destructive behavior?

Pothole #2:  The employee asks to restructure the loan’s re-payment terms. Do you extend the payoff date, or reduce the amount of the installment payments?  If you do, you may just be delaying the inevitable default on the loan.

Pothole #3:  Word gets around and soon several employees are asking for loans/advances.  Some of these folks are marginal to poor performers, without a long-term future at your company.  Do you have to extend them the same loan terms? And if you don’t, will they allege discrimination?

Pothole #4:  The original employee quits or gets fired.  A sizable portion of the loan/advance is still owing even after the company offsets as much as it can against the employee’s last paycheck.

Now what?  Do you cut your losses?  Or do you send a “demand letter” asking the ex-employee to repay the debt?  And if the ex-employee ignores the letter, do you file a lawsuit in small claims court against a (likely) insolvent individual?

Let’s say you sue the ex-employee.  As we know, “the best defense is a good offense.” Are you prepared to deal with a counterclaim  from the ex-employee asserting a violation of some employment law (i.e. discrimination, harassment, retaliation)?  Are you able to handle the risk of the company owing the ex-employee money?

In short, providing a loan to an employee often results in myriad administrative and personnel headaches, capped off by a “good deed getting punished.”  To avoid this,  politely deny the loan request and advise the employee to go to a financial institution.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws
 

Downton Abbey & The Employment Reference

“Downton Abbey” is currently a very popular PBS television show.  It’s set on an English country estate around 1920, and focuses on the owners and the numerous “servants” that work at a large Edwardian Mansion.  Everyone has antiquated titles reflecting their social status, like “Dowager Countess,” “footman,” or “valet.”

Like any workplace, there is always drama.  Servants jockey for promotions and, in the process, often sabotage the work efforts of others.  Given the high standards expected of the servants, some poor soul always seems to be on the verge of losing his or her job for the slightest offense.

As a management-side employment law attorney, I often watch television workplace dramas with one eye out for any legal or human resources (“HR”) implications. (I know, I know, what a nerd!). Although I have only seen a few episodes, it appears to me that the servants on Downton Abbey spend an inordinate amount of time worried about whether they will receive a positive employment “reference” from Lord Grantham or Lady Crawley.  Some downright beg for one, and ominously lament that without it, they may never be able to work again.

How times have changed.  In my experience, many employees nowadays could care less about whether they receive a good reference or not.  Burning bridges is commonplace. Many employees don’t ask for employment references.  Likewise, many employers don’t give references for fear of being sued for defamation and/or retaliation, or give a bare bones “non-reference.” Prospective employers are often forced to “read between the lines,” or, worse yet, attempt to divine the meaning of the “tone” of the former employer during a brief phone call.

Regardless, a positive employment reference can still be valuable to employees and employers.  Accordingly, any employer who wants to provide more than a “name/rank/serial number” reference (perhaps in the hopes of someday getting a more detailed one in return from another employer) should consider the following admonitions:

First, an employer should only give a “good reference” to a “good employee.”  An employer that gives a favorable reference to a marginal or bad employee will very likely see that reference become Exhibit 1 in a subsequent lawsuit against it.  The employee (reasonably) thinks:  “Why was I terminated when they gave me such a glowing letter of reference?  It must be that the company discriminated against me because I am a _____.”  Giving a positive reference to an undeserving (ex)employee simply results in a “good deed getting punished.”

Second, any employer that is considering giving a positive reference should try to get something in return.  In exchange for a positive reference, obtain a signed release under which the employee waives all potential claims against the company related to his/her employment, including the provision (and contents) of the reference.

Third, control who has the authority to provide references for the company.  If possible, designate one person responsible for providing any references.  Often times this is the Human Resources Manager.  Do not let lower level supervisors or forepersons give employment references.  The reference needs to be accurate, truthful and concise.  Having an experienced professional who is careful with his or her words will ensure this.