HR Jobs and Careers News

A gay HR director has sued his former employer, saying the company was biased against straight job applicants.

Jamie Ardigo says he was hired as HR director for J. Christopher Capital, a Manhattan firm owned by J. Christopher Burch.

But, according to court papers, from the beginning of his employment, Ardigo began to overhear senior level execs “make inappropriate comments regarding gender and sexual orientation.”

They weren’t the kind of comments usually mentioned in these types of lawsuits: “Ardigo heard Burch, the company owner, state that he ‘only hired gay men because they were productive and he trusted them.’”

The comments made Ardigo, who is gay, uneasy. “I was highly concerned for the organization and uncomfortable myself working there,” he told ABC News. “I had never worked for an organization that made decisions based on that or that made comments like that.”

Ardigo went to another company official to complain about the comments, the court documents say, but the exec merely said, “Well, he’s the owner of the company.”

Ardigo also claimed he had recommended that a male employee accused of sexually harassing a female colleague be disciplined, but no action was taken.

Instead, he said, his supervisor started to put pressure on Ardigo to reveal personal information — like his sexual preference. When he resisted, the supervisor started to make unfounded complaints about his job performance, Ardigo said.

Finally, Ardigo was fired. His supervisor said he was “not a right fit” for the company.

He filed suit against his employer, alleging sex discrimination, hostile work environment and retaliation. To read his full complaint, go here.

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A Houston newspaper reporter moonlighted as an exotic dancer and was fired for it. Does that mean she can sue for gender bias?Sarah Tressler, 30, was a high society and fashion reporter for The Houston Chronicle.

But in her spare time? She worked as an exotic dancer.

Tressler said she undertook the gig for exercise since she didn’t have a gym membership. She also added that she only performed rarely.

But how she spent her nights was more than enough for her newspaper to can her for failing to disclose the job on her employment application.

But Tressler doesn’t think that decision is aboveboard. So she’s hired high-profile attorney Gloria Allred, who’s filed a charge with the Equal Employment Opportunity Commission on her behalf. The claim? Gender bias.

Allred’s reasoning: Most exotic dancers are female. Firing a woman for being an exotic dancer, therefore, would have an adverse impact on women — and could be discriminatory.

Molly DiBianca on the Delaware Employment Law Blog says Tressler could have a case. If Tressler can show she was fired for not disclosing her side job but men at the paper weren’t, that might mean trouble for The Houston Chronicle.

At the same time, some newspapers and other media outlets hold journalists to strict standards and workplace policies. If the newspaper has followed its policies consistently, it may be tough for Tressler to emerge victorious.

Tressler’s side gig was found out by a competing alternative weekly paper. It probably didn’t help that she also wrote a blog called “Diary of an Angry Stripper,” where she described her exploits dancing at local strip clubs.

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You know when non-exempt staff have to be paid for off-the-clock time or travel. But what about these other wage and hour pitfalls?

Here are six compensable time issues that every HR pro should know how to handle, courtesy of Grace Lee and Robert Friedman of Venable LLP.

Seminars and training

Non-exempt workers who attend a lecture, a seminar or a training program outside the office don’t have to be paid if the event meets the following criteria:

• attendance is voluntary
• attendance is outside the employee’s regular working hours
• the event is not directly related to staffers’ jobs, and
• staff members don’t perform any work during the event.

So when is training or a seminar “related to staffers’ jobs”? When it’s designed to help workers to handle their jobs more effectively.

Another hang-up: Workers who take courses or attend school after hours that’s not required don’t have to be paid either. That still holds true if the employer is covering part or all of the tuition.

Receptions and other social events

Happy hours, dinners, receptions — if non-exempt staffers are required to attend any of these, they have to be compensated for their time. That’s still the case even if they’re not doing any work during their time there.

The key to avoiding mistakes with these events: communication. Train managers not to pressure staff to attend events that aren’t mandatory. Otherwise, you’re on the hook for their time.

Work done while commuting

If non-exempt staff members are required to do work while getting to or returning from work — such as on a bus or train — those staffers must be paid.

Again, supervisors should be trained not to give work to employees that has to be completed outside the workplace.

Volunteer activities

For volunteer activities, the same principle holds true: Are employees required to be there? If workers are required to volunteer two hours at a book drive,that’s payable time, even if it’s outside work hours.

So when does volunteering actually not have to be paid? When the activity takes place outside of work hours and doesn’t involve the employee performing any work. 

Waiting time

Non-exempt employees who are waiting for an assignment must be paid if they can’t leave.

That guy playing solitaire while waiting for work? Pay him. That girl waiting for paperwork who’s reading a magazine? Pay her.

But if staffers are permitted to leave and come back in two hours, you don’t have to pay them — the employees can use

Time waiting for or receiving medical attention

If a worker is injured and receives medical attention at work or at the instruction of a supervisor during work hours, that employee has to be paid.

For example, if a supervisor tells an employee who isn’t feeling well to lie down for 15 minutes, you still owe them for that time.

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Some religious bias cases are subtle. Here’s one that’s not.

A jury in Missouri has awarded a Muslim woman $5 million after she filed suit against her company, claiming religious bias.

Susann Bashir worked as a fiber optics network builder for AT&T for 10 years, and was commended for her good work in the company’s newsletter.

But after she converted to Islam, she said she endured years of daily harassment:

• Colleagues called her “towelhead” and a terrorist
• Workers referred to her hijab as “that thing on her head”
• Bible verses were left on her desk, and
• Employees asked if she was going to blow up the building.

Bashir said she called an employee help line and requested sensitivity training for her co-workers, but nothing was done.

So Bashir complained to the Equal Employment Opportunity Commission (EEOC), which began investigating her complaint.

That’s when the harassment hit a breaking point, culminating in her manager snatching her scarf off and exposing her head and hair — considered a “private part” for Muslim women — during a routine meeting.

Bashir asked that she be transferred or that her manager be removed, but neither happened. She said she was so stressed that she couldn’t return to work, and was subsequently fired.

The EEOC sued on her behalf, and a jury ruled in her favor, awarding her $5 million – the largest jury verdict for a workplace religious discrimination case in Missouri history. (The award will likely be less — Missouri caps such awards at five times the actual damage, plus attorney fees.)

In addition, the jury awarded her $120,000 in lost wages and other damages.

Previously, the largest jury verdict for a religious bias case came in 2009, when an Arab-American won $811,949 in a case against the Missouri Department of natural Resources.

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At most organizations, the workforce is both a significant expense and the most important asset. In order to manage the workforce appropriately — and in turn to serve the business as a strategic partner — HR needs to implement consistent, integrated, and flexible processes and systems.

Click here to read the free whitepaper!   

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Was there really ever a time when people felt loyal to their employers? And is loyalty actually what you’re looking for?

Everybody’s heard the talk about how loyalty has vanished from the employment relationship — on both sides. Back in the day, the narrative goes, employers treated workers like family, and there was a bond between management and workers that went beyond day-to-day productivity.

In a recent post on Knowledge@Wharton, the blog of the Wharton School of Business at the University of Pennsylvania, several professors commented on the state of employee attitudes today.

Management professor Adam Cobb says it’s all about the power:

“When you are talking about loyalty in the workplace, you have to think about it as a reciprocal exchange,” he says. “My loyalty to the firm is contingent on my firm’s loyalty to me.

“But there is one party in that exchange which has tremendously more power, and that is the firm.”

Cobb sees the 1980s as the beginning of the end for worker loyalty: “You started to see healthy firms laying off workers, mainly for shareholder value.” Health insurance costs started to be shifted to employees; pension funds shuttered in favor of 401(k) plans.

“The trend was toward having the risks be borne by workers instead of firms,” Cobb said. “If I’m an employee, that’s a signal to me that I’m not going to let firms control my career.”

Where does their loyalty really lie?

Management professor Matthew Bidwill notes that “there is less a sense that your organization is going to look after you in the way that it used to — which would lead you to expect a reduction in loyalty as well.”

But here’s where he veers off the traditional view: Bidwill’s not sure employees were ever all that loyal to their organizations, no matter what the economic climate.

“Employees are often more loyal to those around them — their manager, their colleagues, maybe their clients. These employees have a sense of professionalism — and loyalty — that relates to the work they do more than to the company.”

Bingo: There’s the opportunity for employers to strengthen their relationship with workers.

Loyalty vs. engagement

It’s pretty clear: In today’s workplace, loyalty and engagement are two different things.

Study after study has shown what makes people stay with their current employer. A checklist:

• interesting, challenging work
• opportunities for advancement and learning
• collegial workforce
• fair compensation
• a respected manager
• recognition for accomplishment
• feeling a valued member of a team
• a substantial benefits package
• the feeling their work “makes a difference,” and
• overall pride in the company’s mission and its products.

Loyalty doesn’t seem to play a very big role on that wish list.

What your managers can do

There’s certainly no dearth of opinions about how managers motivate, nurture and reward employees — and make them want to stick around.

But many of these theories stress the nuts and bolts of manager behavior – as in, “you need to praise at least three employees in your department every day.”

That approach tends to overlook the key issue: What do employees want from their job on an emotional level?

Here’s a rundown of the things the experts say resonate most with employees — and make them want to stick around:

• Clear expectations. Pretty simple: Workers want to know exactly what they’re responsible for, and what they’ll be judged on.
• A sense of control. Employees aren’t robots. They need to feel they have the power to decide how their jobs can be completed — and the freedom to suggest how tasks can be simplified or streamlined.
• Feeling they’re “in the loop.” Employees not only wish to know – and have input on – what’s going on in their department, but what’s happening in the business as a whole.
  And they want to be secure in their understanding of how what they do on a day-to-day basis fits into the overall operation — now and in the future.
• Room to grow. These include potential promotions, extra training, learning new skills and the possibility of using those new skills in a different area of the company.
• Recognition. Everyone wants to believe their extra effort won’t go unnoticed — or unrewarded.
• Leadership. Employees want to be led by people they trust. And the people they trust are those who value workers’ contributions, recognize and accept differences in people and act with employees’ best interests in mind.

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When some businesses began asking job applicants for their social media passwords, critics were immediately up in arms over privacy issues. So you knew it was only a matter of time before something like this wound up on the table.

The Password Protection Act of 2012 (PPA) has been introduced in both the House and the Senate in an effort to keep employers from requiring prospective — and current — employees to hand over personal info, such as passwords for social media sites like Facebook, Twitter and LinkedIn.

The PPA would also keep employers from accessing info on any computer that isn’t owned or controlled by the employee. That includes things like private email accounts, smartphones and photo-sharing websites.

The PPA was introduced in the Senate by Sen. Richard Blumenthal (D, Conn.)  along with the help of a number of co-sponsors. In the House, an identical companion bill was introduced by Rep. Ed Perlmutter (D, CO) and Rep. Martin Heinrich (D, NM).

Here are some of the highlights of what the PPA would do:

• Prohibit employers from forcing prospective or current employees to provide access to their own private account as a condition of employment
• Forbid companies from discriminating or retaliating against a prospective/current employee because he or she refuses to provide access to a password-protected account, and
• Prohibit adverse employment-related actions as a consequence of an employee’s failure to provide access to their private accounts.

However, the bill would allow employers to: permit  social networking with the office on a voluntary basis; set policies for employer-operated computer systems; and hold workers accountable for stealing data from their employers.

Companies that violate the PPA could be subject to financial penalties.

To view the full text of the proposed legislation, click.

We’ll keep you posted on the outcome of the bill.

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If you still need more ammo in the fight to straighten up your employee classification procedures, here it is.

Wage-and-hour complaints are on the increase — causing companies more trouble and costing them more money than in recent years.

Employers settled nearly 110 wage-and-hour cases in 2011, more than double the 40 settlements in 2007 and 2008.

Worse: The majority of settlements were substantial – between $1 million and $2.5 million.

That’s according to a National Economic Research Associates report entitled Trends in Wage and Hour Settlements: 2011 Update.

OT claims and allegations about missed breaks were the most common issues in 2011.

And over half of the settlement dollars in the past five years have come from two industries – retail and financial services/insurance.

Two giant settlements

And if you don’t think the NERA figures are impressive enough, take a look at two recent wage-and-hour settlements:

Review website Yelp recently settled a class action suit after nearly 1,000 account execs claimed the company misclassified them as exempt and failed to pay them overtime. Final cost: $1.25 million.
And that was chump change compared to what happened to Wal-Mart. The retail outlet allegedly misclassified current and former vision center managers as exempt, failing to pay them overtime.
The company agreed to pay $5.29 million – $4.6 million in OT and $463,816 in civil monetary damages.

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Thinking about waiting until the Supreme Court rules on health reform’s fate to comply with the law? Here’s why that’s a terrible idea.

For the first time since the health reform law went into effect back in 2010, the DOL has begun auditing health plans to make sure they’re complying with the law.

What now?

Even if the High Court does strike down the entire law, employment law attorneys expect the feds to hold firms responsible for any violations that were made while the law was still on the books.

That means it’s in employers’ best interest to take a business-as-usual approach to complying with the law now.

Of course, it doesn’t hurt employers to look for aspects of their plans they may want to change if the law is struck down – and talk to their providers about how to make that happen (Supreme Court is expected to rule by June).

In the meantime, here’s a breakdown of what the DOL will be looking for from employers when it comes to healthcare reform compliance.

Grandfathered plans

As you know, a grandfathered plan is any plan that was in place as of March 23, 2010 (the day the health reform law went into effect).

Grandfathered plans facing a DOL audit will need to furnish auditors with a number of documents to validate that status.

Here’s what the DOL expects:

• A statement – contained in all plan materials – explaining why the health plan is grandfathered under the definition in the health reform law (you can find an example of model language for this statement here), and
• Records which show the health plan as it was on March 23, 2010, as well as supplemental documents that can help verify the plan’s status.

Non-grandfathered plans

Of course, most health plans fall into the non-grandfathered category. That means the plans are required to comply with the reform law’s mandates as soon as they take effect.

To prove plans meet the law’s requirements, the DOL wants to see an array of documentation, which includes:

• Documents that relate to preventive services for each plan year (after Sept. 23, 2010)
• The health plan’s internal claims and appeals procedures
• First and final notices of adverse benefit determinations, and
• Contracts/agreements with independent review organizations or third-party administrators that are providing an external review.

All plan types

Under the current health reform law, there are certain provisions that both non-grandfathered and grandfathered health plans must comply with (e.g., the Summary of Benefits and Coverage rule).

Therefore, all plans will be required to show the DOL the following documents in the event of an audit:

• A sample of the plan notice that describes enrollment opportunities for dependents up to the age of 26
• A list of any plan participants who had their coverage rescinded and the reasons for that cancellation, and
• Any documents that have to do with new annual or lifetime limits on the plan’s benefits.

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Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s issue: Ineligible staffers and the Family and Medical Leave Act. 

Question:

An employee who hasn’t been with us for a year broke his leg. Since he isn’t eligible for FMLA yet, should we terminate him now and have him re-apply when he’s healed?

A: That’s probably not the best idea, says attorney Cheryl Stanton, who spoke at  the recent Labor & Employment Law Advanced Practices symposium (LEAP).

Best bet: Consider an unpaid leave of absence instead.

And eliminate any policies you have about employees being automatically fired after they run out of leave.

The Equal Employment Opportunity Commission (EEOC) is taking a dim view of automatic terminations lately — and coming down hard on companies who still those policies.

That’s because under the new ADA, employees who run out of FMLA leave may still be eligible for accommodation under the ADA — and that accommodation could include additional leave.

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