Test Your HR Legal Smarts: Case of The Naughty Poet and the Bad Haircut

With all the suing going on these days, adding J.D. to your SPHR might be a wise  investment. Considering that the average compensatory award in a federal employment suit is $500,000 while law school tuition and books run about $100,000, you might even convince your employer to pay for that Juris Doctor.

Hurry up, though, because as you study torts and contracts and property, your supervisors and managers, to say nothing of the rank and file, are doing some of the darnedest things.

For instance, the owner of a convenience store lost a hostile workplace action this year over his “firing contest.” Then there’s the $45 million lawsuit filed by a nurse who claims her co-workers accessed her medical files and made her the butt of office gossip about her virginity.

Now before you go saying something like “it can’t happen here,” let me throw some numbers at you:

Still feeling like you can handle things?  Then try your hand at deciding these:

Case of the Bad Haircut Cover-Up

The situation: Like so many employers, White Oak Manor, a long-term care facility, had a dress code that was honored more in the breach. Some employees sported visible tattoos; others wore hats. Both were prohibited by the dress code, but no one raised an issue until a supply clerk with a bad haircut came to work with her head covered. After a week, she was told it had to go. She refused. When she again wore a hat to work, she was written up for insubordination.

At that point she talked with 10 other employees about unfair enforcement of the rules, and took pictures of them violating the dress code. One of them complained. Taking pictures inside White Oak without permission was a violation of another rule, which was also routinely ignored by employees who took pictures of each other and posted them.

Your call: Her manager insists on firing her for the picture taking violation. Do you?

The outcome: She was fired, then appealed to the National Labor Relations Board. An administrative judge sided with her, and said her action was protected concerted activity. Though it violated a rule, the rule was not enforced except in this instance.

In upholding the judge, the NLRB dismissed the hat issue saying, “This myopic focus on hat wearing misses the forest for the trees.” The issue, said the board is not about hat wearing “but rather the disparate enforcement of those (company policies).”

Postscript: The anything but liberal, Richmond, Virgina-based 4th U.S. Circuit Court of Appeals upheld the NLRB and the award of back wages plus interest plus reinstatement to her job.

The lesson: A policy worth having is worth enforcing evenly.

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A Case of Poetic Justice

An in-house attorney for a large, multi-national materials manufacturer is believed to be the man responsible for four anonymous poems sent to a co-worker. She thought them “sexually tinged” and that they had romantic overtones.

A company investigation, that included the hiring of a private investigator and a handwriting expert failed to turn up proof positive of authorship. But among the bits of evidence pointing to the attorney, a native Brit,  was the use of words with British spellings, handwriting comparisons, and the discovery in his desk of several other poems he admitted writing after earlier saying he never wrote poetry.

The handwriting expert said it was “highly probable” the 63-year old attorney had written the anonymous poems.

One more item you might find important: One year before this came to a head, the attorney had joined with others in the law department in filing an internal complaint alleging age discrimination. After an informal, but high-level, investigation, the complaint was dismissed as unfounded and nothing more was heard from the complainants.

Your call: The head of the legal department, who is not the direct supervisor and works elsewhere, intends to fire the lawyer. Do you agree?

The outcome: The attorney was fired. He sued (no surprise there) claiming retaliation for the earlier grievance, and age discrimination. The case was dismissed by the trial court, which was upheld by the 1st U.S. Circuit Court of Appeals in Boston. The appeals court said the 16 months between the complaint and the firing tempers the inference of retaliation. Plus, the attorney’s last performance review was positive and he was given a raise.

As to the age discrimination claim, the court said the earlier grievance complained about the department’s immediate supervisor, and not the department head. Said the court, “the discriminatory intent of which a plaintiff complains must be traceable to the person or persons who made the decision to fire him.”

And in this case the department head did not even consult the supervisor before the termination.

John Zappe is the editor of TLNT.com and a contributing editor of ERE.net. John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.

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