Archive for September, 2009


There are some interesting things going on over in Detroit.  According to the Detroit Free Press, former Detroit Corporation Counsel Kathleen Leavey is suing the City of Detroit claiming “she was demoted when she described the court as “ghetto court,” during a conversation in January. Leavey says she was forced to resign her post as interim corporation counsel after [Chief Judge Marylin] Atkins contended in a letter that the ghetto remarks were racist.”  The lawsuit claims reverse race discrimination among other things.  Ms. Leavey is white.  During discovery in the case, Deputy Mayor Saul Green was asked by Ms. Leavey’s lawyer if the use of the “N” word was more offensive when it was used by a white person than when it was used by a black person.  Mr. Green was instructed by a city lawyer not to answer the question and he did not.  Now Ms. Leavey’s lawyer wants to take Mr. Green’s deposition again and get an answer to his question.  You can see the Free Press article here:–ghetto-court–lawsuit

So, while the City claims this question has nothing to do with Leavey’s suit, this is an interesting question right?  After all, that particular word is hate filled and inappropriate, and yet we hear it come out of the mouths of rap singers and comedians all the time.

Now I have what some of you may consider a radical thought, it’s a bit off point and probably has nothing to do with the Leavey case, but then again this is an employment law blog not a news blog and I’m trying to make a point here.  Here it is: the work place is not a rap song or a comedy stage and the “N” word, along with a bunch of other words that have nothing at all to do with race are just not appropriate for the workplace.  And I frankly don’t care who says them, whether it is someone who happens to be white, or black or a little green person from Mars.  If you are a polite adult you do not use words that you know may offend someone else, especially someone you have to work with all day.  What happened to manners?  Anybody with any common sense at all should know that some words just might offend some people.  Don’t say them at work.  Don’t say them to your coworkers when you are not at work.  Get some manners and don’t say them at all.  But if you just can’t stop yourself from saying things that probably will offend a coworker, then don’t be surprised when you get disciplined for it.


Today’s posting is a news flash and nothing more.  On Wednesday, September 23, 2009, U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, chaired the first full committee hearing in the House of Representatives on legislation to prohibit employers from discriminating against employees on the basis of sexual orientation or gender identity.

The Employment Non-Discrimination Act (H.R. 3017), introduced by Rep. Barney Frank (D-MA), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and in 38 states based on gender identity.”  See


Witnesses before the House included, among others, Rep. Barney Frank, the Bill’s sponsor, Stuart Ishimaru, Acting Chairman of the EEOC, Vandy Beth Glenn, a former employee of the state of Georgia who alleges she was fired from her job after she told her supervisor she was transitioning from being a man to being a woman, various legal professionals and representatives of religious organizations. 


You can get links to a video of Representative Frank’s testimony and pdfs of the other witnesses testimony at the committee website listed above.


The full House is expected to vote on the Bill later this year with the Senate taking up its version sometime next year.


We will keep you posted.


I was sitting in one of the partner’s offices today with a couple of the partners of the firm.  One of them, who shall remain nameless, was asking our opinion on a new watch he had just purchased.  It is a really very nice watch.  (Just in case he is reading this).  One of us referred to the watch as a chronograph. Frankly we were not sure if it is a chronograph because it is a single function analog watch. So we looked up chronograph and discovered that a chronograph is a watch that also has a stop watch function.  Interesting right?  A little window into the fascinating practice of law.


OK, not really, but I told you all of that so I could tell you this.  As I left the room I mentioned that today was a good day because we had all learned something.  This popped into my head because, well, I’m odd like that, and earlier in the day I had been listening to the Dan Patrick radio show.  At the end of each show, Mr. Patrick asks all of this coworkers what they “learned today.”  The people on the show then take turns telling the audience what they “learned” from the guests on the show.


Now Mr. Patrick may be doing this as a joke, or as a simple consistent way to end the show, I don’t know, but I think it’s kind of cool.  It is also something that supervisors might want to copy.  OK, not really copy, because you don’t have a radio show and I’m not really suggesting you ask all of your subordinates what they learned today.  In fact, you need to modify this little habit a bit to make it work for you as a supervisor. But what if you asked yourself every day, or week, “What did I learn about one of my employee’s today?” 


If the answer to that question is “nothing” well then it was not a very good supervisory day was it?  But if you make a habit of this and start learning something new about your employees and how they feel about their work every day or week then that means you were probably out talking to them.  And if you are out talking to your employees then they just might think that you are actually interested in them.  And if they think you are actually interested in their lives and what is going on they may just come to you when they have a problem or a concern and not go to someone else, like oh, I don’t know, a union steward. 


And that makes you a better supervisor now doesn’t it?  So what did you learn today?


So, is everyone sick of reading and hearing about H1N1 yet?  I am.  But what I’m really tired of hearing about is all the so called experts telling employers what they need to do when the flu hits the workplace.   “Drop your dr. slip requirement for people who are sick!”  “Pay everyone to stay home when they are sick!”  Come on, really?  Anyone know how you are supposed to pay for this?  I even read one article that quoted some government study that said something like “3 out of 5 businesses will suffer major disruptions in production if half of their employees are out of work for 2 weeks.”  Are you kidding me?  Listen, if you can survive 2 weeks with half of your staff out of work, I don’t know how to tell you this, but you just may be a bit overstaffed.


So how about some practical, lets not panic, what can I really do now advise?  Ok, let me give it a try. 


First of all, bone up on your FMLA knowledge.  The recent amendments to the FMLA make it very clear that the flu, as long as the employee is incapacitated for 3 full calendar days and gets treatment once within 7 days of first becoming incapacitated and again within 30 days or gets a prescription, is covered by the FMLA (how’s that for a run on sentence).  This is good for a couple of reasons:  First, it gives the employee some comfort that their mean old employer can’t fire them while they are out sick.  Second, it gives the mean old employer the medical information he needs so the employee can’t play games with sick time.


Next, go to the CDC website at  Copy this part and post it in the break room where everyone can see it:


Take these everyday steps to protect your health:

  • Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
  • Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hand cleaners* are also effective.
  • Avoid touching your eyes, nose or mouth. Germs spread this way.
  • Try to avoid close contact with sick people.
  • If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.) Keep away from others as much as possible to keep from making others sick.


And then, here are a couple of other things I thought of on my very own, that don’t require you to break the bank and start a whole new benefit program:


Go out with petty cash and by a bunch of tissues and alcohol based hand cleaner.  Spread them around the office.


Cancel unnecessary meetings and tell your employees to do the same.  Why get people together in a small room and let them all get sick if you don’t really need to get together at all.  Plus, when the panic is over you might find out you didn’t really need that meeting to begin with.


Let people know that where you can, and where it is necessary, you will push off deadlines.  This might take some of the pressure off and indirectly encourage sick people to stay home.


Think about letting people work from home when they are sick or they have a sick family member and they want work.  That way they still have some cash coming in and you still have work being done.  And you don’t have sick people walking around the office spreading their germs. 


These are just a couple of things I thought of off the top of my head.  They might not work for you and then again they may.  Bet if you thought about it you could come up with some other ways to prepare without writing a new benefit plan.  If you do, send a comment.


So imagine that you are in an employee meeting.  Every high ranking employee of the company is at the meeting. The CEO of the company, is addressing the crowd.  “We are in bad shape” he says and “we need to fix it.”  Then imagine in the middle of the speech ONE OF YOUR EMPLOYEES, SOMEONE WHO WORKS FOR YOU DIRECTLY, yells out that the CEO is a liar.  How would you feel?  How about mortified?  OK, OK, not my most subtle example.  But the incredible incivility we all witnessed in the House of Representatives chamber Wednesday evening is unfortunately just one more example of incredible lack of manners that seems to be all to common today.  When did it become acceptable or even admirable in some people’s minds for someone to behave this way?


So, you  might ask,  how does this relate to employment law?  Like this . . . . When an employee breaks the rules, sometimes an apology just isn’t good enough.  Sometimes you need to fire them.  When, you might ask?  Well, I am not in the business of telling you when to fire someone and when not to.  But I can give you a list of some things I think can reasonably take an employee to the head of the line:  How about stealing?  Or an egregious violation of your harassment or EEO policy?  And how about insubordination?  Hold, it, now, insubordination is a bit different isn’t it?  The definition seems a bit fuzzier.  You see, if an employee steals or violates the harassment policy the context in which they did that doesn’t seem to matter as much.  But call the CEO of the company a liar and the content DOES matter doesn’t it?  Do it behind closed doors and sometimes the CEO needs to have thick skin and simply take it.  Do it in public for all the world to hear and it seems to me that action should get you a map to the door and an escort out.  That’s why your progressive disciplinary policy needs to allow you the freedom to impose whatever penalty you deem appropriate. 


Now I know what you are thinking.  That congressman who showed such inconsiderate behavior does not work for the President, and you are right.  He works for the people of his district.  Well let me tell you this, if I were his boss, he would be well advised to start looking for a new job.


Ok, I said it in print and I said it in person.  Before the new Congress took its seat and before the new President took office, I was sure that the first bill out of the new Congress was going to be the Employee Free Choice Act.  After all, we have, for the first time in a very long time, a House of Representatives controlled by pro-union Democrats.   We have a pro-union Democrat in the White House, and a pro-union Senate controlled by Democrats.  In fact, a pro-union Senate that can invoke cloture and shut down a filibuster on any bill they really want too.  (By the way, I use “pro-union” and not “pro-labor” because most of the people who actually “labor” in this country do not belong to unions). And yet here we are, on the 09-09-09 and still, no Employee Free Choice Act?  Seems I was wrong.


That’s good, but one wonders why?  I mean, come on, this was a slam dunk.  So what happened?  Well, a bunch of stuff, for example it took forever for Minnesota to work out their difficulties and actually seat Senator Franken.  Then, one of the clear voices in favor of this bill and a key figure and chairman of the committee, Senator Kennedy became ill and ultimately passed away.  Then Congress and the President decided to tackle health care reform.  And now, this. 


On September 7, the Los Angeles Times featured a really interesting article about a recent Gallup Poll.  According to the poll, the general public is not as keen on unions as it once was.  In fact, according to the Times article:

A Gallup poll last month found that the public has become less supportive of unions than at any time since Gallup began asking that question in 1936.

Forty-eight percent of the 1,010 respondents in the Aug. 6-9 telephone poll said they approved of unions, down from 59% a year earlier, Gallup said.

The percentage saying they disapproved of unions jumped to 45% from 31% in the same period. (The rest had no opinion.)

Now unions are pushing hard for the EFCA because they say that the current deck is unfairly stacked against them.  Anyone who has had to deal with an NLRB complaint or election might disagree with that.  In fact, most employers would say that the deck is unfairly stacked in favor of unions already.  Yet, union membership in the private sector continues to decline.  The Times article suggests that one of the reasons that the public’s view of unions is so negative is jealousy.  According to the Times, non-union workers may just be jealous of the security and benefits union workers have.  Really?  Wouldn’t that make union membership increase?  I think another statistic from the poll is more telling. 

And 51% now say unions “mostly hurt” the economy in general, up from 36% in 2006, the last time that question was asked.


Seems to me the public may have caught on.  Look at the American auto companies.  One of the most unionized industries in American history.  On the brink of falling apart and being replaced by largely non-union Asian companies.  Sound familiar?  Sure it is, anyone remember big American steel?  Same story.  Still, in speeches given on Labor Day, both President Obama and

Vice President Biden reaffirmed their support for the EFCA.  In fact, the Vice President promised it would pass by the end of the year.  So much for how the public feels.

You can see the rest of the Times story at  and decide for yourself.                                             



I was driving somewhere on some errand this weekend when I heard a little story on NPR.  You know the kind I’m talking about, the little 2 minute fluff pieces they use to fill time.  Well this one was about some dude who made bumper stickers that said “The Labor Movement, the folks who brought you the weekend” or something like that. 


I wanted to know if that was true, when did the weekend really start and who was responsible for it?  Well, it isn’t really all that clear, but . . .  According to NPR, we can thank a bunch of people including some unlikely allies like the labor movement and Henry Ford. 

Those of us steeped in one form or another of the Judeo- Christian tradition know that a day of leisure has been around since the beginning.  Genesis 2:2 says: “And on the seventh day God ended his work which he had made; and he rested on the seventh day from all his work which he had made.”  So, a day of rest is an old and cherished concept, but why two days in a row?


Well, at least in the US, looks like we can thank the influx of Jewish immigrants in the 1800s.  See, the Jewish Sabbath is on Saturday.  So, according to NPR, in order to accommodate the religious beliefs of Jewish workers, factories started to shut down on Saturday and to accommodate the Christian workers factories shut down on Sunday.  Hey, that’s a weekend!  Nice. 


But I wonder if all of this would have caught on if it were not for good old American capitalism.  You see, in the 1900s Henry Ford wanted to sell more cars.  He thought a good place to start was to sell them to his employees.  In order to do that, he needed them to have a reason to buy car.  So Henry it seems, invented the road trip. In order to accommodate the road trip old Henry started giving his employees both Saturday and Sunday off.  And we have had a weekend ever since.


I don’t know who we really have to thank for this marvelous invention, but thanks anyway.  I just wonder why they couldn’t have come up with a third day?


You can see the NPR story at


We all know that under the Fair Labor Standards Act there are two kinds of employees:  Exempt and non-exempt.  And we all know that generally non-exempt employees are paid on an hourly basis and get overtime.  We also know, or we should that you can’t just decide to make an employee exempt from overtime by paying them a salary.  To be exempt the Employee has to meet both a duties test and be paid on a salaried basis.  We spend a lot of time talking about the duties test with clients.  For example, is the employee a bona fide executive, professional or administrative employee?  The salaried basis test seems to get lost in the shuffle.  So let’s talk a second about the salaried basis test.


According to the regulations, to meet the salaried basis test, your employee has to “receive each pay period . . . a predetermined amount . . . which is not subject to reduction because of variations in the quality or quantity of the work performed.”  The regulations go on to say “Subject to the exceptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days of hours worked.” 


Hold it just a second, what do you mean EXCEPTIONS PROVIDED IN PARAGRAPH (b)? That’s right, there are exceptions.  Wouldn’t be a very good rule if there were no exceptions now would it?  So what are these exceptions you ask?  Well let me just tell you.  You can make a deduction from a salaried employee’s pay for:


(1)   Absences of one or more full days for personal reasons, not sickness (NOT ½ DAYS, FULL DAYS, so if the employee is out for a day and a half you can only deduct for the full day);

(2)   Absences of one or more full days for sickness, if you have a sick pay plan that replaces the pay;

(3)   Off sets (not full day deductions) for amounts received for jury duty, military leave or attendance as a witness;

(4)   Penalties imposed in good faith for infractions of safety rules of MAJOR SIGNIFICANCE (one of the examples given is smoking in the explosives plant);

(5)   Unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules in accordance with a WRITTEN POLICY APPLICABLE TO ALL EMPLOYEES;

(6)   Time not worked in the first or last week of employment;

(7)   Time not worked when an employee is on FMLA LEAVE.


OK, now before you get all worked up, let me throw in this caution.  You mess these up and take an improper deduction and you get the exciting privilege of paying your now non-exempt employee for overtime and you also get to pay everyone else in that job classification working for the same manager for their overtime.  Plus, you will get the fun and exciting opportunity to experience first hand a wage hour audit.  Ok, it’s not fun or exciting.  So, before you do any of this CALL YOUR LAWYER. 


You ever step back and notice how really big changes sort of sneak up on you.  They kind of happen around the edges.  You know what I mean.  One day you are running around a happy fit 225lbs and all of a sudden you look in the mirror and without really doing anything differently you’re walking around at 290lbs! (Hey, that’s my story and I’m sticking too it, did I really eat that many cheesburgers?).  Or worse yet, your 16 years old and you think 40 is old and you wake up one morning and to find out you are 50.  What the heck happened?  Where did all the time go? 


Well, sometimes the law works that way too.  Title VII (the Federal law that governs employment discrimination) does not protect against harassment or discrimination based on sexual orientation.  Congress knows this, they wrote the law and they have repeatedly rejected attempts to amend Title VII to add sexual orientation to the list of protected categories.  No matter your personal feelings on the issue, that is the law, sexual orientation is not protected.   Or is it?


First, in 1989, we had Price Waterhouse v. Hopkins.  Ann Hopkins was denied a partnership in the accounting firm because she used profanity; was not charming and did not walk, talk or dress in a feminine manner.  A plurality of the Supreme Court (that means a majority agreed on the result but not the reasons for the decision) held “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  In short, the Court held you can’t discriminate against a woman because she is not feminine enough.  Ms. Hopkins sexual orientation was not an issue.  And gender stereotyping claims were born. Not a great big change.


In 1998 the Supreme Court, in a case called Oncale v. Sundowner held that same sex sexual harassment was actionable regardless of the gender of the victim or the harasser.  Basically, the case held that you can have sexual harassment even if the harasser does not have sexual intentions towards the victim.  The case has been trumpeted as an important gay rights case even though everyone involved was heterosexual.  And same sex sexual harassment was born.  Not a great big change.


Now, the 3rd Circuit Court of Appeals, (for those of you who are not legal groupies and don’t follow this stuff, the various federal circuit courts are the step below the Supreme Court) has held that a homosexual man can proceed with a claim of sex discrimination based on his failure to conform to “gender stereotypes.”  Mr. Prowel, the plaintiff in the case testified that he “had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and has a tendency to shake his foot the way a woman would sit; walked and carried himself in an effeminate manner; drove a clean care; . . . and (my favorite) pushed the buttons on the nale encoder with pizzazz.”  These are his words, not mine. 


Now the lower court in this case dismissed Mr. Prowel’s claim holding that it was simply an artfully packaged sexual orientation complaint and that Title VII does not protect sexual orientation.  The appeals court, in what will, if this becomes law in other jurisdictions be a prophetic pronouncement stated:  “As this appeal demonstrates, the line between sexual orientation discrimination and discrimination because of sex can be difficult to draw.”  I’ll say.  No matter your personal feelings on the issue, that is the law, sexual orientation is not protected.   Or is it?  Seems like we found the great big change. 


It will be interesting to say the least to see if other circuits will adopt the 3rd circuits’ logic.  Stay tuned, today you are16, tomorrow 50.