Does Zero Tolerance For Bullying In Schools Impact the Workplace?

We have an entire generation emerging from schools that had zero tolerance for bullying, and I think we're already seeing the effects. I have some hypotheses on how zero tolerance in schools is changing the American workplace. Here are some of my thoughts. Do you agree with me?

Cocky nerd: With no bullies to suppress nerds, we're seeing the advent of the cocky nerd. Nerds used to be shy and hardly emerge into the light, but now they can be the most popular kids at school. I see a lot of cocky nerds emerging in music, and I think they're showing up everywhere. This is probably a good thing. If smart kids thrive, then everyone benefits when they come up with the cure for cancer, the personal helicopter I've always dreamed of, or a way to colonize Mars.

Lazy smart people: I was talking to my office manager about the disconnect between the younger generation and mine in the workplace. One of the big complaints I hear pretty universally is that the best and brightest grads can be downright lazy. They want to put in their hours, not work too hard, and go home at 5. My theory on this is that bullies in school made my generation's smart kids feel like they had something to prove. They'd become billionaires or cure heart disease and show everyone at the next reunion. Bwahahaha! Fast forward. This generation of smart kids were the cream of the crop in their schools and they were treated like gold. They won student elections, ran the clubs, and even became cheerleaders and captained the football team. They have nothing to prove. They're kinder and gentler, sure, but where's the motivation, the willingness to work late and put in that extra mile? Do bullies serve a purpose in society after all? What other explanation is there for some of the workplace behavior I see reported by frustrated HR people and supervisors? Where's the joy in working hard to accomplish a task exceptionally well?

Culture shock: With bullying alive and well in the workplace, we have a generation that is utterly unprepared to deal with workplace bullies. They think they can tell HR and everything will be taken care of, like dropping the anonymous bullying complaint in the middle school office. Ha! What a rude surprise they're getting. When this generation grabs some power in the workplace and the legislatures, bullying will disappear from the workplace too.

I think the trick here will to be for my generation and Gen X to figure out how to motivate the millennials (without bullying, obviously). I'm not sure what the answer is. These are obviously gross generalizations and purely untested hypotheses, but I think we'll have some unexpected effects when the zero tolerance generation takes over.

Bullies need to be eliminated in workplaces as well as schools. I think it's overall an improvement that this generation is a bully-free zone. Will they figure out how to end wars? Will they shun bullies instead of rewarding them? Or will they bask in the glory days when they were kings and queens of the school and wonder why they are getting poor performance reviews from the mean old boss?

So, do you think I may be right? Any other theories on how anti-bullying laws for schools will impact the workplace? I'd love to hear what you think.

Is My Noncompete Contract Superseded? Which Contract Applies?

This reader question was left on my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours:

Hi Donna, I am in the State of PA and had signed two year non competes to get options grants. I left the company under a voluntary separation agreement and part of it was a 1 year non-compete Agreement. Question is does the latter 1 year non compete supersede the 2 year Agreement. Also the Agreements are broad and cover the entire globe - what if I have not worked in the potion of the globe where I may work for the last two years? 

 The first thing I do when I look at a severance agreement for an employee who signed a noncompete is the clause at the end that probably starts with something like, "This is the entire agreement between the parties . . ." The reason I do that is because whether older agreements are still in effect depends on what this clause says.

If it says that it's the entire agreement between the parties except for the noncompete agreement, then the noncompete in the older agreement probably still applies.

If it says it's the entire agreement between the parties and can't be modified except by a writing signed by both parties, with no other modifier, then the old agreement vanishes. I've seen entire noncompete agreements vanish this way. In your case, you have new obligations that supersede the old ones. But in some cases I've actually told the employee to sign the agreement speedy quick before the employer realized that they just lost their noncompete. Can you say malpractice for the lawyer who drafted that one?

If it says that it's the entire agreement between the parties related to the subject matter of the agreement, then in your case the old one goes away. However, if it's a severance agreement without the noncompete language then the question will be what a court thinks the subject matter of the agreement is. I'd argue that the subject matter of the agreement was the obligations of the employer and employee post-termination and that it's gone. Would a judge agree with me? I don't have a crystal ball.

Of course, you're in Pennsylvania and I'm in Florida, so Pennsylvania lawyers might look at this completely differently. I'd love to hear from some of you in the comments. I'd suggest talking to an employment lawyer in your state before you sign.

 

What Can I Do About Sexual Harassment At A Small Company?

An AOL Jobs reader asked me:

I work for a small family-owned business.
One of the married employers is having an affair with another owner. There are pictures going around of him standing in his doorway (which is directly across the hall from her office) masturbating and then going into her office, where she continued the act for him. This all took place within thirty feet of his wife's office, which could have been seen by anyone walking out of their office into the hallway.
The company was recently sued for sexual harassment by another employee for sexual acts from this same man, which was settled out of court in the ex-employee's favor.
The daily strain of coming to the office is getting hard to handle. I can't afford to quit, but health-wise I don't know if I can continue. I have had a headache for four solid months due to the strain of this situation. I am three years away from retirement, which makes it difficult to quit, and I also carry the health insurance for my husband and myself.
Do you have any advice for me?

Yikes! First and most important advice: get the heck out of there if you can. For the rest of my advice, read my column at AOL Jobs.

Is Sexual Harassment Against Contract Employees Legal?

I received this question on my post I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

Thank you for this article, it is very informative. I was wondering what the difference is when I'm a contract employee for a company. I work minimal hours weekly at a private company. I experienced verbal sexual harassment by a coworker. I reported it to the director and was fired via email a few days later. Then a few hours later I was re-hired. They realized I could sue them apparently. They are now limiting my freedom to move around the company without someone with me. They are not firing the offender. I don't know if I have any claims against them as a contract worker (1099 misc.) but am infuriated by how unprofessionally I was treated. I asked for a copy of their sexual harassment policy and was told I am not entitled to it since just an outside vendor. I currently am back working my shifts, although they clearly do not want me there and only un-fired me to prevent a lawsuit.

In general, independent contractors are not covered by anti-discrimination laws. However, most people classified as contractors are, IMO, misclassified and are really employees. I've written about this in detail in my article 11 Things To Know Before You Sign An Independent Contractor Agreement. In general, if your employer controls the time, place and manner of your work, you're an employee. If they can discipline, tell you how to do your work, have to approve vacation time, and you can't hire an assistant if you want, you're an employee.

There's a handy-dandy form the IRS has called the SS-8 that you can fill out and the IRS will do the work for you. If you think you're really an employee, fill it out, send it in and the IRS will figure out if you're an employee or not. If you are an employee, the employer will owe back taxes and you'll be covered by employment laws.

You can also talk to an employment lawyer in your state. If you file with EEOC, you need to be prepared for a fight on the issue of whether you're an employee or not, so either do the SS-8 form or make sure you have your legal arguments and proof ready for EEOC.

If you're a contract employee and not an independent contractor, then you're covered. However, it's your actual employer, not the company you're providing services for, who is primarily liable. If you haven't reported it to your actual employer, then you should. If the company you're providing services for controls your work and you enough, they may be a joint employer that would also be liable for the sexual harassment.

While the company doesn't have to fire the offender, if he/she does it again they could be liable since they are now on notice of his inclination to sexually harass.

This certainly sounds like a retaliation situation, so if you are misclassified then you should definitely file with EEOC and/or look at your state's whistleblower laws.

Ask Donna: Answers to AOL Jobs Reader Questions On Wages and Overtime

AOL Jobs readers have LOTS of questions on wages and overtime. I answered a couple questions in my column.

One reader asked:

I have a question pertaining to time. At my current employer, we are technically salaried but we clock in and out for time. Although our boss states it's to be able to calculate PTO, he takes minute for minute once we clock out if under 40 hours. If we are over 40 hours, we get PTO and not over-time. The PTO is minute for minute. Also, if we work through lunch, he will take the hour away stating he "has to". so basically our time card won't be a true reflection of our time worked because he always takes an hour for lunch whether you take it or not. Is this illegal? Should i contact the DOL?

Another reader asked:

I am an LPN and I work for a ministry in Tennessee. They have demanded that we clock out at our designated time even tho we are not finished with our work. They want us to finish our work "off the clock". I would like to know if this is legal, and what can be done about it.

For my answers, read my article at AOL Jobs.

If Your Contract Says It Isn't A Contract Is It A Contract?

A reader asks this question in the comments to my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours

In 2012 my husband started working for a contractor. As a subcontractor he signed a subcontract agreement. In which case has schedule of payment as 45 days net and the non compete agreement. As he did sign it but in bold letters it states THIS IS NOT A BINDING CONTRACT AND CAN BE TERMINATED ANYTIME FOR ANY REASON. In 2013 he got let go because they butted heads. (not because he did bad work). Its now been over 125 days and yet still no payment. Does that mean the non compete still applies?

 You gotta love a contract that says it isn't a contract and isn't binding. I actually see this all the time in employee handbook acknowledgements that employees have to sign. I like to point to this language when the employer turns around and tries to enforce noncompete language in the handbook. My conversation usually goes something like this: "Hello? You put right here that it wasn't a contract. Are you saying it is now? Because then I think my client has claims for your failure to follow the progressive discipline policy, along with a bunch of other claims for your failure to follow your own policies." That is usually met with a bunch of muttering under the breath and a quick, "I'll get back to you."

I can't say I've ever seen this kind of weaselly language in a document called "contract" or "agreement." This raises an interesting question. If the document's title says it's a contract, but the language in the document says it isn't a contract, then what the heck is it?

The one thing it isn't is a contract. That means, IMHO, that your noncompete obligations in the document are also not a contract that they can enforce. Would a judge agree with me? Maybe. The issue, if they had the nerve to sue over this non-contract contract, would be the intent of the parties. I assume the employer will say something like, "I meant that it was terminable at will, not that the noncompete part wasn't a contract." I don't think this would fly, since any ambiguity is supposed to be construed against the drafter.

The other issue is the failure to pay all sums due. Once they breach a contract (assuming it's a contract) then your obligations should be null and void. Again, I can't guarantee a judge would agree with me, but there's plenty of case law in Florida on this and presumably every other state has similar cases. This is basic contract law - once a party breaches a contract, the other party's obligations vanish.

If you haven't been paid wages due, then you probably also have claims under your state's unpaid wage laws, unjust enrichment, wage theft, breach of verbal contract, or some other legal theory. You should talk to an employment lawyer in your state about what claims you have and let them review your agreement to see if they agree that your noncompete may not be binding

Will The Reason For My Termination Turn Up In A Background Check?

A reader left this question in the comments to my post Loss Prevention is Lying to You.

Hey Donna, would you know if for example LP fired a person from a company, would other companies that person applies for be able to see everything that happened between him and the company he got fired from?

One of the very common statements I hear is, "I know they aren't allowed to say that in a reference." This statement usually comes from someone who is shocked (shocked!) to find out that their former employer gave them a very bad reference. Many people think employers can only give out dates of employment and job titles.

That's dead wrong. At least here in Florida, an employer can say pretty much any darned thing they want in a reference. There's a statute saying that employers can't be sued for giving truthful information in a reference here and in many other states.

What does that mean? It means that employers can trash you at will and may not be breaking the law. Here's what you need to know:

Employers can't defame you. That means they can't give out factually false information to potential employers. While they can probably get away with saying stuff like, "She wasn't a good fit," or "He didn't get along with management," or "Her performance wasn't up to par," they can't say, "He turned out to be a pedophile," or "She embezzled from us." Opinion is okay but false facts aren't. And no, they can't say, "In my opinion, she embezzled from us," and get away with it if that's false.

Truth is always a defense. Saying, "A coworker complained about sexual harassment and we had to let her go," if true, may not cross a line even if you didn't sexually harass anyone, but this is probably borderline and would depend on the situation.

Retaliation may (or may not) be illegal. Sometimes, employees say to me, but I know they're retaliating. I have to ask: "Retaliating for what?" Some people don't seem to understand the concept. Others think if they complain about bullying, unprofessionalism, or bad boss behavior they're protected. They aren't. However, if you report or object to something illegal like discrimination, failure to pay wages, safety violations, FMLA violations, or sexual harassment, then you're probably legally protected against retaliation. This means an employer can't slam you in references just to get back at you for, say, filing with EEOC.

Public records: Generally, your personnel file or loss prevention file isn't a public record, and your former employer isn't going to part with it or give a copy to a potential employer. Exceptions exist for many government entities that have to make records available to the public. Also, some publicly held corporations may have to disclose certain information to shareholders. In addition to this, if you're applying for a job in law enforcement, many times the police department will investigate by asking for a copy of your personnel file for review (and most employers will cooperate).

Legal proceedings: EEOC filings aren't public record, but lawsuits are. If you sued your former employer and your personnel file or testimony came in about your termination, then your new employer or a potential employer can get this by pulling the court file.

Industry filings: Some industries, like securities, have filings that include reason for termination. Those forms, once filed, can be pulled by potential employers in the industry.

These are all reasons why, if I'm negotiating a severance package or settlement of an employment law case, I ask for either an agreement the employer won't say negative things about you to anyone, or at least for neutral references, which means they can give dates of employment and job title only. If you left on bad terms, you might want to talk to an employment lawyer about getting an agreement that our former employer won't say bad things about you.

Some employers have a policy of only giving out neutral references, but if they violate their own policy you don't necessarily have a lawsuit against them for doing so. Many potential employers will ignore your request that they call a central reference number or HR and will call your former supervisor directly, in which case almost anything could happen.