Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts

            Say you have a coworker, Don Dashing. He’s an idiot. A screw up. Yet he keeps getting promotions, the best leads, the best shifts. Your female boss, Dahlia Desperate, clearly plays favorites. You have your suspicions, and one day you walk in on Don and Dahlia doing the horizontal bop on Dahlia’s desk. Aha! you cry. Suspicion confirmed! You run to Human Resources and file a sexual harassment complaint.

            You tell them that Don got the promotion you were most qualified for. Dahlia never hit on you, but if she had, and you’d been the one lighting up Dahlia’s life, you’d have gotten the job. Sexual harassment. Clear and simple. If you’d had sex with Dahlia, you’d have the job.

            The HR lady looks concerned. She’ll investigate immediately. You’re fired the next day.

            Should you start shopping for beachfront property? Did you just win the lottery? Nope. You probably lose. Here’s why.

            Cases like this one are called sexual favoritism. The courts say that the boss can favor someone they’re having sex with. In most cases, sexual favoritism is perfectly legal.

            Ron Miller, of the Wolters Kluwer blog, recently posted about two new sexual favoritism cases. In one, Zimpher v. Aramark Management Services, our employee hero walked in on his boss’s afternoon delight with a coworker. He reported it and was fired. The court said that, because what happened wasn’t sexual harassment, when he reported it he wasn’t protected from retaliation. Why wasn’t it sexual harassment or sex discrimination? Because the conduct he reported wasn’t directed at him or his status as a man. (Had he filed with EEOC, he’d have been protected from retaliation, even though he’d have had no basis for filing the charge of discrimination, but that’s another ridiculous part of employment law I’ll save for another post).

            In the other recent case, a woman complained about a sexual relationship in the workplace and was also retaliated against. Too bad, said the court. Since the affair and favoritism affected everyone, no matter their sex, it wasn’t sexual harassment. Because it wasn’t sexual harassment, she wasn’t protected from retaliation.

            This isn’t to say that all sexual favoritism is legal. The EEOC has issued a Policy Guidance (that the Courts can ignore if they want to) saying when it thinks sexual favoritism crosses the line. To summarize:

o   Boss plays favorites with consensual lover: legal;

o   Boss plays favorites with lover who was bullied into the relationship in exchange for favoritism: may be sexual harassment for other employees of the same gender as the lover;

o   Favoritism based on sexual favors in the workplace is widespread: may be sexual harassment for other employees of both genders.

o   Isolated instances of sexual favoritism: legal.

But, you argue, treating women (or men) as sexual playthings is discrimination, isn’t it? It’s demeaning to their gender. If the women who boink their supervisors get promoted, doesn’t that send the message to other women that sex is the only way to get ahead in the workplace? Yep. I agree. So far, many courts don’t agree. I won’t get into the legalese on this, but I can direct you to an excellent law review article on the topic if you want more information. Basically, it comes down to what state you live in. For instance, if you’re in California then some sexual favoritism is illegal. In my home state, Florida, it probably is not.

Sexual harassment cases are getting harder and harder to win (again, I’ll save it for another post). If you report something you think is sexual harassment to HR and it turns out not to have been sexual harassment, the employer is allowed to retaliate. If you fail to report sexual harassment and go straight to EEOC instead, your employer has a complete defense to your sexual harassment lawsuit. Catch-22 personified.

There oughta be a law . . .

H-1B Workers Have Rights Too

Over at Ask A Manager, Mike C. asked me this excellent question:

In my experience in the biotech industry, it always feels like the H1-B folks are indentured servants who are constantly afraid of being fired and deported. They’re generally expected to work for longer hours and seem to get less pay for their work.
What sorts of practices are legal/gray area/illegal regarding the treatment of H1-B visa holders? If I see illegal practices, who should they report complaints to?
Thanks for your consideration!

            Just because you’re here on a visa doesn’t mean you have no rights. The Immigration and Nationality Act gives workers who are here on work visas, and U.S. workers employed by an H-1B dependent employer, certain rights.

            H-1B workers have rights which include:

·         Copy of the Labor Condition Application: In this application, the employer must agree to pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; offer benefits on the same basis as for U.S. workers; provide working conditions for immigrant workers that will not adversely affect the working conditions of workers similarly employed; not employ an immigrant worker at a location where a strike or lockout in the occupational classification is occurring; notify the agency handling the visa applications of any future strike or lockout; and within 30 days before the date the application is filed, provide notice to the bargaining representative or employees of the employer's intent to hire H-1B, H-1B1, or E-3 workers.

·         Wages: The employer has to pay at least the same wage rate paid to similar US employees or the prevailing wage for the occupation, whichever is higher.

·         Non-productive time: If the employee can’t work due to the employer’s or worker’s lack of a license or permit, they still have to be paid for their time.

·         Fringe benefits: They must receive benefits on the same basis as other employees.

·         Penalties: There can be no penalty for leaving employment before an agreed date, but there can be “liquidated damages” under relevant state law for anticipated damages due to a breach of contract.

·         Rights as employees: Immigrant employees have the same federal, state and local rights as all employees under laws such as the Fair Labor Standards Act, Family and Medical Leave Act, Title VII (except they can’t bump an equally or better qualified U.S. worker from a job), COBRA, and other employment laws.

U.S. workers and applicants have rights if their employers also employ H-1B employees, which include:

·         Layoffs: They can’t be laid off within 90 days before or after the employer files a petition to employ an H-1B worker in an equivalent job.

·         Hiring priority: The employer must offer the job to any U.S. worker who applies and is equally or better qualified than the immigrant worker.

·         Wages: They must be paid wages at least equal to any H-1B worker in the same or equivalent position with similar experience.

            Both U.S. and immigrant workers have these rights:

·         Retaliation: Employers cannot intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

·         Examine records: All employees have the right to examine the employer’s records that they are require to maintain regarding their compliance with the law.

            The Department of Labor has a detailed fact sheet about employer responsibilities, employee rights and penalties here. The Department of Justice enforces violations, and penalties can be severe.

What Can I Get If I Win A Case Against My Employer?

Most employment cases aren't going to be those big headline multi-million dollar awards. Usually, if you're lucky, you might recover lost wages and benefits. Very few cases result in big money for the former employee, so don't assume you have a winning lottery ticket as soon as a coworker makes a racist or sexist comment.

Damages are the monetary value of the losses that a judge or jury awards to you if you win a lawsuit. They have to have been reasonably foreseeable, and not speculative. Compensatory damages are those that compensate for the actual loss. Punitive damages are those which punish someone who commits an intentional tort to act as a deterrent to future such behavior.

In employment, different types of cases can result in different types of damages. Here are some of the types of damages you might see awarded:

Read more on AOL Jobs.



Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Can They Really Say That? What Employers Can Say About You When Giving References

           Readers on the Ask A Manager blog asked me quite a few good questions when I volunteered to write a guest post. While we had to select one, I wanted to follow up and answer this great question that I also hear from employees a lot, so I'll answer from both the employee and employer perspective:

References, for an employer to read. So many companies spill nothing except names and numbers. While it’s legal to say anything that reflects an honest assessment of that ee’s work, they won’t for fear of the almighty lawsuit. A refreshing amount of candor from an employment attorney on how many ees actually sue over this issue would be greatly appreciated. Also, some insight on what you can say that will never get you in hot water, or what will get you sued over if you DON’T tell someone.

           The truth is that employers can give any truthful information they want about your performance. Defamation is where your employer or former employer makes a false statement of fact about you to someone other than you that damages your reputation.

Some states have statutes protecting employers who give job references to some extent, but even then the employer generally can’t give out knowingly false information. A statement that you were an embezzler, ponzi schemer, or pedophile, made when the person giving the reference knew it was false, will probably not be protected.

A few states actually require employers to provide a letter of reference up on request. What has to be in that letter varies from state to state, but it usually includes job title, dates of employment, salary and/or reason for leaving or termination.

            Qualified privilege: Employers have a qualified privilege, that is, one that can be overcome, to conduct an investigation of employee wrongdoing. For instance, if someone complains of age discrimination, the employer’s human resources person, attorney, and the named witnesses can speak about the investigation and will probably be protected. There are some ways to overcome a qualified privilege, so you’ll want to talk to an attorney even if you think the statement was privileged. The problem for employers comes after they conclude that the employee committed wrongdoing. While they may have a privilege to investigate internally, an employer may have liability if the accusation spreads outside the company to potential employers.

            Publication: In order to sue for defamation, the information must have been “published” to a third party, which only means that it had to be said to someone other than you. If it gets to a potential employer, it was “published” to a third party. Some states consider statements made inside the company not to have been published to a third person. A statement to you about you will never be defamation unless others were present to hear it.

            Absolute privilege: Some communications can never be the subject of a defamation case no matter how knowingly false. These may include statements made in a legal proceeding, statements made to police, to administrative agencies, and by government officials in the scope of their employment. I say “may” because this can vary by state and can be fact-specific. While your employer may be able to say certain things about your performance or alleged misconduct to unemployment, they may not be able to say the same things to potential employers without having some liability.

            Opinion: Statements of opinion are not defamation. If the employer simply says that the employee was a poor performer, the statements may well be of opinion, not fact (but if the performance review says the opposite, it may cross over into fact rather than opinion). Statements like, “In my opinion, she was a pedophile,” will not get around the law of defamation.

            Truth: Truth is always a defense in a defamation claim. If you stole from the company and your supervisor tells a potential employer that you were fired for stealing, they will probably win a defamation suit. However, the employer will have the burden of proving the truth of the statement, which can be tough. While they may have suspected you, they frequently don’t have enough evidence to convince a jury.

            Liability to other employers: An employer who gives false information to a potential employer can be liable if they are damaged by the misinformation. That means telling a potential employer that your thieving employee is honest just to get rid of them will bite you when the employee embezzles from them. If they find out you lied and knew of the employee’s propensity to steal, you could be sued.

            Neutral references: This is why many employers have neutral reference policies, where they only give out dates of employment and job title. This is obviously safe information to give. I would caution employers who have neutral reference policies to apply them evenly. If you give positive or negative references to some employees, you could get socked with a discrimination claim.

            Reference checking companies: There are professional reference checking companies that pretend to be potential employers and then tell the employee what’s being said about them. Their reports can usually be used as evidence in a defamation case. I’ve also seen employers who were given awful references tell employees what was said and offer to testify. Never assume what you’re saying about a potential employee won’t end up in court.

            Agree what will be said: When I negotiate severance agreements, we usually agree what can be said about the employee. Sometimes it’s neutral, sometimes the employer prepares a letter and agrees to give the information from the letter and nothing else. That’s probably a good policy even without an agreement. When an employee is leaving, why not write down exactly what you plan to say in a letter and give it to them? That way they don’t have to worry about what you might say, and you don’t have to worry about getting sued. Just don’t pull a fast one or be cute, like the employer who said, “I need to check the agreement to find out what I’m allowed to say.” No, no, no. That person already said something they weren’t allowed to say. They deserved to be sued for breach of contract.

Donna’s tips:

a.       Employees can defame former employers too, so be careful. Corporations can be defamed just the same as individuals. If you have a blog, website, or make statements disparaging the company or their products, you should be careful to get your facts right.

b.      Defamation claims against employers can be tough. Many judges just don’t like them. If you sue, you could have an uphill battle. However, that doesn’t mean employers shouldn’t worry. An employee who sues is likely not paying by the hour, but employers defending themselves will end up paying someone’s hourly rate. The cost of defense can be in the tens, or even hundreds, of thousands of dollars, depending on the case.

c.        Sometimes a cease and desist letter will accomplish more than a lawsuit. Getting the defamer to stop the statements might be more valuable to you because you can move on and get another job. An employer who gets a cease and desist letter from an employee’s attorney should take it seriously. They already have a lawyer. Assume they mean business and will sue if it continues.

d.      If you are thinking about filing a defamation claim against an individual, be careful and make sure the person has assets that will make them collectible. Broke defendants can be frustrating when you try to collect.

4 Times When You Should Complain About Your Boss

I usually recommend against complaining about your boss. It can be satisfying to complain, but complaining can get you fired. There's no First Amendment in the private workplace, and even government employees' free speech rights are limited. If you say your boss is incompetent or unprofessional, you aren't protected from retaliation.

Still, sometimes you really do have to report your boss to Human Resources or someone in management. Here are four times where you're legally protected from retaliation if you complain (no, I can't guarantee they won't retaliate anyhow, but you have some legal remedies if they do).

Read more on AOL Jobs . . .



Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Tortious Interference: Ammunition Against Workplace Bullies and Harassers?

            A new case in Florida is part of a growing trend where employees strike back against coworkers who bully or harass them at work. In Alexis v. Ventura, out of Florida’s 3d DCA, the court said it was error to dismiss a tortious interference claim against a supervisor.

            She alleged that her boss created a hostile environment motivated by a discriminatory intent against her. The court set out the elements of a tortious interference claim:

To state a claim for unlawful interference with an advantageous business

relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under

which Alexis has legal rights;

2. Ventura’s knowledge of the relationship;

3. An intentional and unjustified interference with that relationship;

4. By a third party;

5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987).

The question on appeal was whether the supervisor was a “third party” for purposes of her claim. Normally, a supervisory or managerial employee is considered to be a party to the employment relationship. However, the court said:

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)).

            I thought this was an interesting case because it could provide extra ammunition to an employee who is a harassment or even a bullying victim. The problem with suing individuals, of course, is that they rarely are wealthy enough to pay off judgments of any amount. Still, where bullying and general harassment are legal, this type of suit might enable victimized employees to strike back.

            I checked it out and it looks like tortious interference claims have been allowed in some states but not others. Some states that seem to be allowing these claims (I’m sure my colleagues in these states will tell me if I’m wrong) include Massachussetts, Texas, Missouri and New York. In addition to the problems with suing the individuals, your company is always going to be a “party” to your employment relationship, so you won’t be able to tag your employer with this type of claim.

            Another downside I see to these claims is you have to claim the coworker or supervisor was acting outside the scope of their employment, which might mean a free pass from the employer if you’re also suing them. But if the company points to the individual and says they were working outside the scope of their employment, it might be wise to bring in the individual and let the jury decide which one is to blame.

            I’m always looking for ways to go after bullies, so this looks like a promising claim if it’s allowed in your state.

Employment Law Blog Carnival Arrives!

The Employment Law Blog Carnival is a collection of great information from employment lawyers around the country (including me). You can check out this month's edition here. Check it out and get informed about your rights.