Category Archives: Handbooks

LONG ISLAND LIMO COMPANY LIABLE FOR FIRING FEMALE EMPLOYEE WHO REFUSED TO HAVE SEX WITH MANAGER

The New York Post reported today that a married Long Island ­limo-company manager told a female dispatcher he was firing her because she rejected his sexual ­advances — and even put it in writing: http://nypost.com/2015/04/10/boss-texts-gal-shes-fired-because-she-refused-his-sexual-advances/

According to the Post:

“The damning text — sent by former US Limousine manager Raymond Towns­end to pretty underling Geralyn Ganci — ended up costing him and his employer more than $700,000 in legal damages and fees, court papers show.

Ganci, 32, sued Townsend after she was fired for repeatedly refusing his barrage of sleazy requests, which eventually landed her in the hospital with extreme emotional distress, her suit said.

The sex-crazed Townsend said in one text that he “had to pull over to the side of the road and masturbate thinking about me,” Ganci said in her suit.

Ganci said she was shocked and sickened by his behavior — which occurred despite the fact that Townsend’s wife worked at the same New Hyde Park company and sat near her.

Finally, after allegedly forcing her into a restroom and putting his hand up her shirt, Townsend told the resistant Ganci she was fired in February 2009.

“The plaintiff even received another text message from Raymond Townsend which has been preserved stating that the reason plaintiff was fired was because she ‘refused to have sex with the general manager,’ ” according to the court papers.”

WHEN IS AN EMPLOYER LIABLE FOR ITS SUPERVISOR’S SEXUAL HARRASSMENT?

An employer may be subject to liability to a victimized employee for a hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  However, when no tangible employment action is taken, a defending employer can avoid liability IF (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

While proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden.

No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

LESSONS FROM LONG ISLAND

Rogue supervisors — such as the Long Island limo manager — are unfortunately present in many companies.  To avoid liability for a supervisor’s misconduct, ensure that:

  • Your company has a solid complaint procedure in its employee handbook and/or other policies;
  • Any complaint procedure provides that the alleged victim can complain not only to the employee’s supervisor, but also to upper management and beyond in the event that the employee is uncomfortable complaining to the supervisor or unsatisfied with the company’s investigation;
  • The complaint procedure is known to all employees, documented as such, and reviewed with employees by management on at least an annual basis;
  • Company management is trained by legal counsel periodically on handling and investigating complaints;
  • The Complaint procedure is reviewed annually for any changes in the law or your organization;
  • Your company carefully follows its complaint procedure; and
  • If there has been supervisor harassment, it does not culminate in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

 

 

DRAFTING A GOOD VACATION POLICY IS AS EASY AS A DAY AT THE BEACH

January is a time to get back to work. With holiday vacations and 2014 now solidly in the rear view mirror, employees are working hard — and again starting to accrue vacation time. This edition of the HR Law Insider discusses what is required of employers when it comes to vacation time and vacation pay.

No law requires Arizona employers to provide vacation or vacation pay (PTO is treated the same). Providing vacation or PTO to employees is purely voluntary. Most employers provide the benefit to attract quality employees, allow employees time to recharge, and because it is almost unheard of not to provide it.

HOWEVER, if an employer provides a vacation benefit, the employer will be bound by its policy — until and unless it changes that policy. Once vacation is “accrued” or earned, an employer cannot retroactively change its policy. Rather, any change must be applied prospectively, to future events.

In my experience, employers frequently err by not a evaluating what they truly want their vacation policy to look like or how it will work in real world situations. This typically results from the use of “form” employee handbooks handed down from third parties or cut and pasted off the internet. Significant problems can occur when an employer binds itself to something it didn’t intend, such as the unpleasant surprise of having to pay a long time employee tens of thousands of dollars in unused, accrued vacation pay upon the employee’s departure.

Here are important questions every employer should ask and answer when implementing or updating it’s vacation policy:

*  Whether to allow employees to take vacation time before it is accrued.  If allowed, and an employee ends employment with a negative balance, how to treat the situation.

* Whether to allow vacation time or vacation pay to roll over into the next year, or to have a use it or lose it policy.

*  Whether to cap the maximum amount if rollover is allowed.

*  Whether to reduce exempt employees’ vacation balance if they take partial days off (this will not remove the exemption from paying overtime, whereas docking the employee’s pay would remove it).

*  Whether and how much notice will be required of employees requesting vacation.

*  Whether to have a policy that any accrued vacation is forfeited at the end of employment, or forfeited if the employee is terminated or resigns without notice.

*  Whether to treat some employees differently, and if so, how to evaluate the risk of a discrimination claim presently or in the future.

*  Whether the employer is keeping good track of vacation time and accounting for any large balances in employees’ accounts (if rollover of vacation time is allowed).

*  When and how to seamlessly implement a new policy.

Employers should review their vacation policy annually to determine whether it needs to be tweaked, overhauled, or outright scrapped. This simple task will result in a policy that works for your business, your employees, and your needs. Because there is no requirement to provide vacation, employers have unlimited discretion in drafting a policy that fits their needs.

 

HOOTERS’ EMPLOYEES HAVE THE LAST LAUGH: HR LESSONS FROM A RIGGED BIKINI CONTEST

Truth is stranger than fiction. Fiction has to make sense.                                       

Mark Twain

One would think that it is lawful to maintain a work policy that “prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.” This is no longer true. A judge recently ruled that such a policy violates the law.

The judge’s decision arose from a rigged bikini contest at Hooters. But do not confuse the novelty of the event with the applicability of the ruling to businesses nationwide. The next time a company thinks about terminating an employee for badmouthing it on Facebook or flaming it on Twitter, that company first needs to understand the Hooters’ case and assess the risk of an unlawful discharge lawsuit.

WHAT HAPPENED AT HOOTERS: KEY LIME PIES AND A BIKINI CONTEST GONE AWRY

Problems began at Hooters when an employee heard the company’s General Manager disparaging another “Hooter Girl”: “Angie eats too many key lime pies after her shift and she needs to go to the gym, rather than laying around with her boyfriend. And that she’s starting to look really bad in her uniform.”

Problems worsened when Hooters’ management sent a memo to employees about an upcoming bikini contest:

Hey Ladies, If you are not signed up for the contest you WILL be working that night. But to clarify if you have your name on the list and you plan on backing out cross your name off the list by Friday. If you are signed up for the contest and do not show up it will be a no call no show by our regional and GM and you WILL BE TERMINATED. Also you MUST be here by 8:30 p.m. If you are late you will not be allowed to enter the contest and you will work the floor that night like it was a scheduled shift. Any questions or if I’m not clear let me know.

This morale killing memo set the stage for post-bikini contest ugliness. The contest ended around midnight, with many tired and angry contestants. Several among the disgruntled and defeated complained that the contest had been rigged. After all, the winner was Hooters’ Marketing Coordinator who helped arrange the contest.

A particularly upset Hooter Girl told the winner, who was part of Hooters’ management, “Congratulations on cheating.” Other employees were not so understated, telling the winner “you’re an f%$ing bitch,” among other not so flattering comments.

Hooters’ Vice President of Human Resources abruptly fired the employee who made the “cheating” comment. The terminated employee was given the following notice:

On April 22, 2013 after the Ontario Swim Suit Competition you got into a verbal altercation with other employees, as well as posting disparaging comments about coworkers and managers on Social Media. This behavior violated the following provisions of the “Discipline” section of the Hooters employee handbook:

  • Acts of violence, threats of violence, dishonesty toward guest or fellow employees of Hooters.
  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guest.
  • Any off-duty conduct which negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the Company’s reputation, or the smooth operation, goodwill or profitability of the Company’s business.
  • Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill, or profitability of the business.

THE LAWSUIT

The fired employee challenged the decision as being unlawful. The judge agreed. He found that the complaining employee had engaged in “protected concerted activity” under the National Labor Relations Act (the “Act”). Under the Act, if “employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.” See http://www.nlrb.gov/rights-we-protect/protected-concerted-activity.

The judge also found numerous provisions of Hooters’ handbook to be unlawful. He concluded that Hooters was “maintaining the following overly broad work rules”:

(a)        That prohibit employees from discussing tips with other employees or guest.

(b)        That prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.

(c)        That prohibits employees from disrespecting guests by discussing tips with guest or making negative comments or actions to guests.

(d)       That prohibits dispersal of sensitive Company operating materials including policies, procedures, financial information, and Company manuals.

(e)        That prohibits any action or activity affecting the Company’s smooth operation, good will, or profitability of its business.

(f)        That prohibits off-duty conduct which would tend to negatively affect employees ability to perform their jobs or the smooth operation, good will, or profitability of the Company’s business.

(g)        That prohibits employees from discussing the Company’s business or legal affairs with anyone outside the Company.

(h)        That prohibits employees from publishing on their social networking sites any confidential or proprietary information of the Company.

(i)         That prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers or posting any information regarding a coworker or the Company.

THE BIG PICTURE FOR COMPANIES

The judge’s decision seems extreme — and it is. Times have changed. So too must company decision makers. Gone are the days when a company can terminate first and think later when an employee disparages the company.

Not all employee conduct is protected. There are boundaries. There is a point at employee conduct goes beyond protected dissent and becomes unprotected misconduct. Determining when that point has been reached is oftentimes challenging. This is particularly so given the government’s growing zeal in prosecuting so-called “Section 7” cases (Section 7 of the National Labor Relations Act prohibits terminating employees for engaging in protected concerted activity).

Next week’s HR Law Insider will analyze real world court cases in which judges have decided specific employee conduct which is protected, versus employee misconduct that is not protected. The objective: to provide your business with guidelines for handling employee dissent, whether it arises on Facebook, Twitter, or in the unlikely event your business decides to rig a bikini contest.

This week’s video recognizes that whether one is in the 1960’s or 2014, the times they are a changin’.