Work Matters

Bereavement leave for the 21st century

I am doing some pro bono work, helping a large nonprofit re-do its employment policies. We were working on bereavement leave, which lets employees take off time when a family member dies. The old policy had the usual suspects for which deaths qualified for leave — a lengthy, mind-numbing list. I raised the issue of nontraditional relationships. We struggled with whether to include gay marriage, significant others, live-ins with a committed relationship but no ring or marriage certificate, and on and on. But rather then debate how many angels can dance on the head of a pin, we settled for common sense and humanity. Here is what is in the works: The nonprofit "realizes that this list is illustrative, not exhaustive, and that there are many nontraditional relationships that can be no less important to our employees. If you believe that bereavement leave is appropriate in your circumstances, please let [designated person] know, and we will work with you." So many employers want to regulate every aspect of the employment relationship, developing a legalistic code for everything that may or can occur. They fear being taken advantage of and looking foolish. Hey, that's life. The world changes, and we must change with it.

Watch for more FMLA claims about caring for aging parents

What's hot in Family and Medical Leave Act litigation? FMLA leave to care for a family member with a serious health condition. The aging population means lawyers will see more of these claims. Look at what the U.S. District Court for the Eastern District of Michigan sketched out on June 21 in Lane v. Pontiac Osteopathic Hospital. A son takes intermittent FMLA to care for his mother, who suffers from diabetes, high blood pressure, weight loss and arthritis. He misses three days of work to clean up her flooded basement. He is fired and sues for an FMLA violation but loses on summary judgment. Why? Here is the court: "Plaintiff has not shown that the three days of leave taken to clean up the flooding were needed to care for his mother. . . . the ‘FMLA does not provide leave for every family emergency.’ . . . Plaintiff is required to present evidence that his mother's basement had to be immediately cleaned for her basic medical, hygienic, or safety needs and that he had to do it because she could not." He didn't, so the court tossed his claim. Lawyers should expect more of these claims.

A classic offers lessons on firing employees

I am reading "The Aeneid" by Virgil. Aeneas flees Troy with his family when the Greeks sack the city. On his way to found Rome, he tarries in Carthage, where he and Queen Dido hook up and become an item. But he needs to go establish Rome. Instead of manning up and telling her he has to leave, he dithers and talks to his crew about it, promising himself he will let her know (when the time is right). Dido is as smart as she beautiful; she picks up on what he is planning and confronts him: "So, you traitor, you really believed you'd keep this a secret. This great outrage? Steal away in silence from my shores? Can nothing hold you back? Not out love? Not the pledge once sealed with our right hands?" How does Aeneas respond? Like a wimp, in lawyer-like double talk and equivocations: "Not once did I extend a bridegroom's touch or enter into a marriage pact with you . . .  stop inflaming us both with your appeals." Zero empathy. Dido laments: "Has he even looked at me?" No, Dido, I don't think so; you were a fungible item. He sails to establish Rome; she impales herself on his sword. I see this type scenario play out when employers fire employees, which is like dumping a significant other. The two things most people hold most dear are their jobs and their loves. In both, the best way to end the relationship is to be transparent, cut to the meat of the coconut (like pulling off a bandage) and show real empathy. Do so may avoid a suit; failing to do so runs a significant risk of one. Displaying empathy too late does not help. Aeneas learned this; he runs into Dido when he visits the underworld. He sees his mistake and seeks to apologize for it. But he’s too late. "Don't withdraw from my sight. Running away — from whom? This is the last word that Fate allows me to say to you. The last. Aeneas, with such appeals, with welling tears, tried to soothe her rage . . . but she, her eyes fixed on the ground, turned away. Her features no more moved by his pleas as he talked on than if she were set in stony flint or Parian marble rock." And all this leads to the Punic Wars between Rome and Carthage. A few minutes of empathy, kindness or understanding, and he would have set sail, and she would have found another consort.

The details of deadlines

The following is taken from Equal Employment Opportunity Commission v. Freeman, an April 26 decision by the U.S. District Court for the District of Maryland. The EEOC sued a company named Freeman, alleging its use of credit history as a hiring criteria had a disparate impact upon black job applicants and that its use of criminal history had a disparate impact upon black, Hispanic and male applicants. The EEOC became interested in these alleged practices when an applicant filed a charge of discrimination with the agency. This is undisputed: The EEOC, in its role as vindicator of the public good, can sue on behalf of a class of individuals harmed by discriminatory practices, even if all individuals affected did not file a charge of discrimination themselves. Bit of background: The law requires aggrieved individuals to file a charge of discrimination within 300 days of an unlawful practice. Here is what is unclear: Is the EEOC limited to seeking relief for individuals who allegedly were subjected to the unlawful practices during the 300 days before someone filed the original charge? Or can the EEOC go beyond the 300-day window? While an aggrieved person (Person A) can piggyback on another person’s charge, the question is whether the EEOC can recover money for Person A if his claims are stale. The U.S. District Court in Maryland disagreed with other courts and granted partial summary judgment to Freeman, holding that the EEOC cannot seek relief for anyone affected beyond the 300-day window. In short, the court held that Title VII limits the class of individuals for whom the EEOC can seek relief to those allegedly subjected to the unlawful practice during the 300 days before the charge was filed. Beyond that, the aggrieved person is out of luck; as the court reasoned, nothing in the law “suggests that the EEOC can recover for individuals whose claims are otherwise time-barred.”

Rethinking voir dire

Here is a thought on voir dire techniques. The conventional way of trying to strike a potential juror for cause when he indicates hostility to a client's case: "Before you hear any testimony, would you lean toward the plaintiff, even a little bit?" The lawyer then builds upon the answer. Here is a different way: "If you are selected for this jury, these feelings you have likely will pop up in deliberations, won't they?" Build from there. The bottom line: Start at the end of the process, not the start. And  remember, that voir dire is designed to root out the client's enemies, not find its friends.

Leadership lessons from those with lives in their hands

Back in May, The New York Times had a great interview with Steve Hannah, the CEO of The Onion, in its “Corner Office” feature. For those who may not know, The Onionis a very funny take on the news via its web page and videos. (One of my favorites is the video in which President Obama decides to give a performance review to every worker in the country. I still smile when I think about it.) When Hannah interviews someone for a job, he wants to get to know where they came from. This is what he says: “I have two basic questions in mind: ‘Can you do the job, and would I enjoy spending time with you?’ I want to know where you came from. I want to know how many children are in your family. I want to know where you fit in and what your role was. I want to know what your mother and your dad did, what influence they had on you.” Later he says, “I want to know whether you were a kid who was entitled, whether you worked hard.” A big influence on his own life was working on a book with Lt. Gen. Harold Moore, "We Were Soldiers Once . . . and Young: Ia Drang — The Battle That Changed the War in Vietnam." ( I have not read the book, but the movie based on it depicts the first battle between Army Rangers and North Vietnamese regulars. It is gripping.) Hannah relates that Moore taught him a lot about workplace leadership: 1. Never deprive a human being of dignity. 2. When faced with a difficult issue, remember that there is always one more thing you can do to influence the outcome of the situation. 3. Always lead from the front. 4. Listen to those below you on the chain of command because on any given day one of them may be the most important person your operation. (I tap this out in a restaurant/bar I go to. The manager, about whose ideas I have posted before, makes the same point: Lose the dishwasher, and the whole place comes to a halt.) The interview reminds me of a scene in the movie that, for me, distills leadership applicable to the workplace. Moore and his troops are going to fight in Vietnam. It is a send-off. Families and friends are in the audience. Moore comes to the microphone and says that he cannot promise anything; some of them will not be coming back. But, as I recall from the movie, he says he will promise them that he’ll always be the first person on the battlefield and the last person off and that he will never leave a body. Lesson for lawyers: Be honest. Be transparent. Show leadership; don’t just talk about it. It’s a worthwhile read.

1st Circuit: Sexual desire is not a necessary element of a hostile work environment claim

Here is a case from the 1st U.S. Circuit Court of Appeals, Rosario v. Department of the Army, decided June 2. The court's opinion sketches out the basics. Rosario worked for a supervisor who was allegedly obsessed with her clothing, which he criticized as being overly revealing. He told others, in front of her, that he could see her underwear. He did so on a daily basis and commented that she dressed like a "street worker." He wrote her up for her choice of inappropriate attire, but other employees said her dress was fine. Here is part of the write up:

The way we dress for the workplace should be "business like." On occasion the way you dress has made me and co-workers very uncomfortable . . . in the workplace you are required to stand, ben[d], reach above for documents, and you need to be fully aware, clothing that attracts the attention of others, again the standard is business like.

A co-worker of the supervisor told the supervisor that the co-worker thought the supervisor had a crush on Rosario. There's more. The supervisor supposedly did not like Rosario eating at her desk and threw away her food when she did and removed personal item from her desk, such as family pictures. Rosario, for her part, said this conduct destroyed her life. She sued for a hostile environment. The trial court tossed it on summary judgment, saying the supervisor may have been rude and a boor, but there was no evidence that his conduct was motivated by sexual desire. The 1st Circuit reversed the grant of summary judgment, saying sexual desire is not a necessary element of a hostile environment claim, and courts can consider collateral actions, such as removing the food and personal items, noting that "such acts may be added to the mix in assessing a hostile work environment claim." The court held that males were not exposed to this conduct, the comments were based on Rosario's sex, and they were severe and pervasive. Add it all up, and she gets to take her claim to a jury.

From 1698, words of wisdom for witnesses

I spend a lot of time trying to get witnesses to pause before they answer questions. They too often just want to pop off with the first thing that comes to mind, unwisely calibrate the pace of their answers to the speed of their interrogators’ questions and become upset when they can't get the answer out the way their minds tell them they should. So, a section called "Learn to Pause" in "The Quest for Meekness and Quietness of Spirit" by Matthew Henry caught my attention. Henry was a minister in England and wrote the book in 1698. A lawyer friend in Houston gave the book to me. Henry writes that learning to pause is as "good rule in our communion with God [as] in our converse with men." I would substitute "opposing counsel" for “men.” He cites scripture: "Be not rash with thy mouth, and let not thine heart be hasty to utter anything" (Ecclesiastes 5:2). He enlists Socrates in proving his point, noting that the philosopher once said to his servant, "I would beat thee if I were not angry." He also tells us about a statesman of Queen Elizabeth's time who advised that we should "think twice before we speak once." Henry wraps up with these words of advice: "Nor can there be anything lost by deferring our anger; for there is nothing said or done in our wrath. but it might be better said and better done in meekness." Or as my mother told me "A moment's pleasure often leads to a lifetime of regret." Timeless advice for an ageless challenge.