Outten & Golden: Empowering Employees in the Workplace

Archive for February, 2010

AFSCME Members Rally to Save Public Services

Thursday, February 25th, 2010

Image: James ParksWhile state and local governments and school districts across the country struggle with budget deficits, AFSCME members are standing up to tell their elected representatives that raising revenues is the best solution to a budget crisis instead of cutting critical public services just when they are needed the most.

State and local governments and school districts have a $178 billion budget shortfall this year alone.

In Illinois, more than 3,000 activists, including hundreds of members of AFSCME Council 31, rallied at the state Capitol rotunda in Springfield this month to demand that lawmakers pass legislation to increase the individual income tax rate and expand the state’s sales tax base.

AFSCME members in Washington State lobbied lawmakers to preserve state services.

AFSCME members in Washington State lobbied lawmakers to preserve state services.

Meanwhile, some 1,500 AFSCME members from throughout New York State demonstrated and met with legislators in Albany earlier this month to find a fair way to protect essential public services.

AFSCME President Gerald McEntee told the New York State workers:

Elected leaders are on the verge of destroying vital public services and putting more people out of work. They’re jeopardizing the health and safety of the people and our communities.

In Maryland, a delegation of AFSCME members carried boxes of “Budget Fight Back” cards to their lawmakers in January. Signed by more than 3,000 state employees, the cards propose a plan to generate more than $2 billion in revenue to close a budget gap, including drawing on the state’s rainy day fund, expanding the sales tax to more services and increasing gas and alcohol taxes.

You can read more about efforts by AFSCME members in other states to save public services on AFSCME’s website here.

*This article originally appeared in AFL-CIO blog on February 24, 2010. Reprinted with permission.

About the Author: James Parks had his first encounter with unions at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He has also been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections. Author photo by Joe Kekeris

Republicans Aren't Bringing a Health Reform Plan to the Summit Because They Don't Want to Reform Health Care

Wednesday, February 24th, 2010

Yesterday, Republican leaders finally confirmed that they weren’t going to bring a health care bill to the President’s summit tomorrow. Why? Because they don’t actually want to reform health care (emphasis added):

The Senate GOP leadership is brushing off Dan Pfeiffer’s demand this morning that Republicans clarify whether they’ll produce a bill in advance of the summit, and won’t put forth a “comprehensive proposal,” aides say.

This morning on the White House blog, Pfeiffer challenged GOP leaders to say whether they’d be bringing a bill to the summit. “The Senate Republicans have yet to post any kind of plan,” Pfeiffer wrote, adding that “we continue to await word from them.”

Asked for comment, a senior Senate GOP aide emailed:

We fundamentally disagree with a comprehensive proposal to reform health care. We think a step by step approach on areas where we agree is the best path forward. We will not be posting a comprehensive alternative to commence a staring contest.

Of course, health care advocates have known this all along. Republicans have no solutions to the crisis in our health care system because they don’t view it as a system in crisis.

However, the position that health care in this country doesn’t need fundamental reform is a dangerous position to take. Never mind that every day we go without reform, 6,821 more people lose their health insurance [pdf], 2,548 more people file for bankruptcy because they got sick, and 60 more people die [pdf] because they don’t have the coverage they need. Declaring that as a party Republicans “fundamentally disagree with a comprehensive proposal to reform health care” is radically out of step with the American people.

The latest Kaiser Health Tracking Poll is only the latest in a series showing the elements of health reform are popular:

Other parts of reform are really popular too, like the public option.

And majorities want comprehensive health reform passed:

And even more will be disappointed or angry if reform doesn’t pass:

If Republicans think going with nothing is going to win them broad support, they haven’t been reading their polling.

Democrats need to work to make sure the reform that passes works for everyone in America and has the popular elements in it – they must pass health care that works for us and pass it now. Today, we’re helping to put in 1 million messages to Congress to send them that message, and Melanie’s March is arriving in DC to a huge rally with Senators attending the summit, so we’ll get to tell that message to these Senators in person.

Getting health reform done right is more than good policy for the country, it’s popular, too. And it will show America that Democrats won’t accept the party of NO’s strategy.

*This post originally appeared in Health Care For America Now on February 24, 2010. Reprinted with permission.

About the Author: Jason Rosenbaum is a writer and musician currently residing in Washington D.C. He is interested in the intersection of politics and culture, media consolidation issues, and making sense out of our foreign policy disasters. He currently works for Health Care for America Now and he is also the webmaster for The Seminal.

Obama Releases Revised Health Care Reform Blueprint

Tuesday, February 23rd, 2010

President Obama this morning released his version of health care reform legislation that combines elements of the Senate and House bills passed late last year. The new plan was unveiled in preparation for Thursday’s televised bipartisan White House health care summit.

AFL-CIO President Richard Trumka said working families “look foward” to moving the ball forward this week toward the goal of quality, affordable health care for all Americans. Republicans in Congress have an opportunity to stand with working families or continue to protect the profits of the insurance industry. We are prepared to work with the White House and leadership in Congress to advance a comprehensive health care bill that will be passed into law.

House Speaker Nancy Pelosi (D-Calif.) said this morning the revised proposal “contains positive elements” from both bills. She is scheduled to meet with the other House Democrats today to review the bill further. In a statement, Pelosi said:

Our nation is closer than ever to guaranteeing affordable health care to America’s middle class and small businesses, lowering costs and strengthening Medicare for seniors, holding insurance companies accountable, and reducing our deficit. The cost of inaction is too great for our nation and for every family facing the heartbreaking reality of skyrocketing health care costs and denied care or coverage.

An excise tax on health benefits that remain in the plan has been modified even further than an earlier agreement reached by the White House and union leaders. Under the latest proposal, the tax wouldn’t kick in until the annual premium cost for all families reached $27,500 and would not take effect until 2018.

The bill also includes: higher subsidies for low- and middle-income families to help pay for health insurance: closing the Medicare prescription drug ”donut hole”; new authority to control health insurance premium increases; applying the full Medicare tax (both employer and employee share, or 2.9 percent) to unearned income for families earning more than $250,000; an increase in the penalty for employers that do not provide health benefits from $750 per worker to $2,000; increased Medicaid funding for all states; raising from $23 billion to $33 billion the assessment of drug companies; a ban on denial of coverage for pre-existing conditions. Click here for a full summary.

House and Senate Republicans who have unanimously opposed the reform bills and blocked action were invited to post an alternative health care plan on the White House website so voters could compare ideas. But Republican leaders refused the offer. However, they do say they will attend the Thursday summit.

*This post originally appeared in AFL-CIO blog on February 22, 2010. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. I came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. When my collar was still blue, I carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. I’ve also worked as roadie for a small-time country-rock band, sold my blood plasma and played an occasional game of poker to help pay the rent. You may have seen me at one of several hundred Grateful Dead shows. I was the one with longhair and the tie-dye. Still have the shirts, lost the hair.

Losing Friends and Influence at Work

Monday, February 22nd, 2010

Image: Bob RosnerI get a lot of wonderful fan mail. But the nasty emails are the ones that you can really learn something from. Take this one (please!), that I received recently:

“You are an idiot; the main thing wrong at my workplace is management. Same as the last job. It would be nice to be treated as an equal in all areas, not just when I come in late once every two years and get dinged for it. Most punks half my age don’t know what work is, just a bunch of whiney spoiled brats with greasy spiky hair. I deal with hundreds of slackers too lazy to click three times to find an answer or listen to a front end message to call the write extension for help, including most of all “management”. What a bunch of losers. 50% of my coworkers have at least two years on the job and are clueless.”

I guess you could call this a target-rich environment, because there is so much to comment on…

Let me start with his opening—“You are an idiot.” What a great way to motivate your reader to want to keep reading what you’ve written. The problem is that most of us forget that old rule that you’ll always get more with honey than with a smack on the butt—at least that’s what my mom told me when I was just a little sprout.

If the game that you’re playing is to be self-righteous and burn every bridge, then of course lead with a vicious attack targeting your reader. Heck, throw in a choice vulgarity while you are at it. However, if you’d like to see something positive come from an interaction, stick to the facts and you just might get your reader to listen to what you have to say. Just a thought.

I do like that he blames management for the problems at this job and his last one. After personally responding to over 50,000 emails from bosses and employees, you don’t have to convince me that there are a lot of bad bosses out there. But there is a point when you have the same problem following you around from job to job—where you have to ask what is the “common denominator” here? And more importantly, there is the “it takes two to tango” rule—how do you contribute to the problem? I always try to ask these questions before I attack someone else.

Then there is his diatribe on the “losers” he is forced to work with. Again it’s all, “they do this,” “they do that.” Okay, you are thinking that I’m beating up on this poor guy. But to me this is the greatest example of why the workplace is getting so nasty and difficult to maneuver through; because this guy isn’t alone. There are so many people out there screaming “they, they, they” when, ironically, they could probably be happier and learn more if they spent more time exploring “me, me, me.” But we can only make this leap when we are thinking rationally and able to muster some real introspection, something few of us have any time or inclination to do any more.

I know that work is tough; even demoralizing some times. But I do think it’s interesting that in just one paragraph this guy attacked me, management and the losers he has to work with. Wow, isn’t this great energy that you’d like to spend 40 hours a week with? Again, it’s too easy to blame just him. The important question is to look in the mirror to ask, “What baggage do I bring to work each day?” And, “How hard is it to put up with me on a daily basis?”

Then there is the key reference that explains the entire diatribe, “Not just when I come in late once every two years and get dinged for it.” The guy clearly got busted for something he did wrong. Rather than acknowledging his mistake, he goes on a rampage to expose every “wrong” and “loser” in today’s workplace.

And that’s why this is the perfect email to sum up everything that is wrong with work. Because rather than taking a slice of humble pie about a mistake, he goes on the attack. So throw stones until your heart’s content—just remember by doing so you blow the opportunity to begin the journey toward a better workplace.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

Employee Fired Because Of Depression Wins Right To Jury Trial

Monday, February 22nd, 2010

Banker Terminated When “Regarded As Disabled” And Because Of Perceived Mental Impairment Has ADA Claim

Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*
Facts Of The Case

Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.

On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this”, drove to a cemetery, took a gun out of his backseat, and called his sister.

When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.

Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident.

On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.

On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”

On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.

The Lawsuit

Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.

ADA: What’s The Law?

The Americans with Disabilities Act law is quite complicated but here it is in a nutshell.

In order for an employee to establish a prima facie case under the ADA, he must show he:

1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability

The ADA defines disability as:

1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3.
being regarded as having such impairment

If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.

If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination — meaning that it’s a “phony excuse.”

The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”

The Court’s Opinion In The Case

Regarded As Disabled

The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.

Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly believed that his mental disorder substantially limited the major life activity of working .

The Court agreed with Lizotte.

Quoting from the landmark case of School Board of Nassau v. Arline which interpreted the “regarded as” language in the Federal Rehabilitation Act, it noted:

Although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.

By including ‘regarded as’ in the Rehabilitation Act ‘Congress acknowledged that society’s myths and fears about disabilities and about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.

Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereotype, the individual will satisfy the regarded as part of of the definition of disability.

In Lizotte’s case, the defendants:

* were aware that he was being treated for depression

* knew he had attempted suicide the night of November 30th and was hospitalized for several days after the event

* were “blown away” that he was released from the psychiatric unit after only 4 days

* perceived Lizotte’s mental impairment (mood disorder according to his doctor) to be much more restrictive than described by his doctor

* inaccurately believed:

1. that he could not work

2. suffered from a condition that made him potentially violent at work

The Court stated:

There is undisputed evidence that Lizotte was terminated on December 14, 2006 because of the Defendants’ concerns about ‘safety,’ reputation,’customer acceptance,’ ‘liability,’ and a desire to protect the bank’s image in Minot.

The EEOC regulations and case law explicitly state that such ‘attitudinal barriers’ may reflect a perception of disability based on ‘myth,fear or stereotype’ and that this is a scenario the ADA is designed to guard against……..

The Bank Defendants’ “Legitimate Reasons” For Termination And Proof Of “Pretext”

Bank officials stated that it terminated Lizotte because of three concerns:

1. the safety of its employees and customers
2. its reputation in the community
3. its reputation with its employees

The record however, did not support those justifications — and certainly not as a matter of law. For example, as the the Court noted, the evidence showed:

* the suicide incident was not well known in Minot or among other bank employees

* no adverse business results occurred in the two weeks between the suicide attempt and Lizotte’s termination

* no employee said he or she couldn’t work with Lizotte

* there was no financial impact on the bank

* no customers pulled their accounts nor asked to be transferred to a different loan officer

As stated by the Court:

There may have been legitimate, non-discriminatory reason(s) to terminate Lizotte in December 2006, but there are certainly inferences that can be drawn from the evidence presented that the bank acted on the basis of myth, fear,or stereotype, and that Lizotte’s perceived mental impairment was the reason for the termination. …

The ADA does not require that Dacotah bank officials to put its staff and the general public at risk by employing an individual who poses a direct threat to others.

But the ADA does require the bank to provide due consideration to an individual they arguably may have ‘regarded as’ having a mental impairment and who may be able, with reasonable accommodation, to perform his work productively and safely. ….

There is conflicting evidence as to whether the employment decisions were made because of a perception of a disability …. that warrant a jury trial and preclude the granting of partial summary judgment on the ADA claims.

Lessons To Be Leaned

According to the National Institute for Mental Health, mental disorders are common in the United States. An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That’s over 70 million people.

Therefore, millions of people with depression and other mental disorders may be exposed to employment discrimination because of a disability which can and should be accommodated.

This case is a perfect example of what can happen when misconceptions about depression and other mental impairments can result in an illegal discharge under the Americans with Disabilities Act.

images: www.lipseys.com

www.westernsolutions.com

*Reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

*This post originally appeared in Employee Rights Post on February 19, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Does Sen. Jim DeMint’s Rhetoric Against Government Workers Make them Targets for Extremists?

Friday, February 19th, 2010

ron-mooreGovernment workers witnessed a scene yesterday horrifically reminiscent of the Oklahoma City terrorist attack the last time a Democrat occupied the White House. A suicide attack was launched in Austin, Texas by a man who chose to assault government workers as an expression of his rage against government policies. While it is easy to see this as an act of a deranged individual, it is not unreasonable to consider the role rhetoric against government workers plays in fueling this rage.

When Senator Jim DeMint (R-SC) sees a government worker in uniform such as a TSA Officer or U.S. Capitol Police Officer he sees a potential threat. These officers, sworn to protect and serve are potential ‘union bosses’ in his mind and may use the right to collectively bargain as a tool to control security.

TSA officers continue to organize as they serve the American people while they await the fulfillment of President Barack Obama’s promise to permit them collective bargaining rights. Sen. DeMint successfully obstructed the confirmation of Errol Souther as TSA Administrator saying the appointee “has not been forthcoming about whether he’ll give union bosses control of our airport security, which is one of the most important decisions he’ll make as head of the TSA.” While Sen. DeMint may not realize that ‘union bosses’ come out of the workforce and are elected unlike corporate bosses, the recent Supreme Court decision provides millions of reasons to continue to oppose the right to organize.

But what if this rhetoric suggesting that government workers are a threat if they organize puts these workers in danger from anti-government extremists? Terms such as ‘bureaucrats’ are used to dehumanize those who serve the America people each day. It is this dehumanizing rhetoric that makes it easier to morph the person into the policy. Thus an attack on the person becomes an attack on the policy and can be justified in the mind of a terrorist. Sen. DeMint is presumably opposing TSA collective bargaining rights as a fundraising tactic (although he is protected by officers with those rights).

Yesterday that tactic, that hate speech against government workers may have contributed to a tragedy in Austin.

This article originally appeared in the Washington DC Examiner on February 19, 2010. Reprinted with permission.

REPORT: The Recovery Act, Unsung Hero of the Year

Thursday, February 18th, 2010

Image: Kate ThomasMarking the first anniversary of the American Recovery and Reinvestment Act (ARRA), the SEIU is releasing a new report today analyzing the social and economic impact of the Recovery Act. This report explains what the aggregate numbers on economic growth and job creation fail to illustrate–how the Recovery Act helped counter the recession by protecting human services and the workers employed to deliver those services at a local level.

Reporting by state recipients of Recovery Act direct government investment spending demonstrates that this spending has saved or created 1,239,437 jobs in both the public and private sector. When you include the impact of indirect spending–jobs created or saved as a result of the consumer spending of directly funded job holders–the total rises to 1,859,156 jobs that have been saved or created. Pretty amazing. Without it, the unemployment rate in December 2009 may have reached 11.2 percent, 1.2 percent higher than the actual rate of 10.0 percent that month.

How Recovery Act Investments in Human Services Created and Saved Hundreds of Thousands of Jobs -
While it would be impossible to describe all of the significant findings of this report in just one blog post, I’ll be doing just that in a series of blog posts at SEIU.orgover the next couple of days. I’ll also be highlighting the stories included in this report–collected from a combination of public sources, government Web sites, and interviews with SEIU state-level leaders–which uniquely illustrate how states and some local units of government have used ARRA resources to limit scaling back.

For workers like Akbar Chatman–a substance abuse counselor for the Department of Mental Health in Los Angeles County–the Recovery Act played a critical role in helping him do his job. Watch:

While conditions are far better than they would have been without the stimulus fund actions that were taken, it is clear that substantial challenges remain. Without additional fiscal relief, new budget gaps could force state governments to shed 900,000 jobs this year.

View the report in full at http://seiu.me/arra

Download the (PDF) report:
“How Recovery Act Investments in Human Services Created and Saved Hundreds of Thousands of Jobs”

*This post originally appeared in SEIU Blog on February 17, 2010. Reprinted with permission.

About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

Around the Country, State Employees Rally Against Furloughs, Pay Cuts

Wednesday, February 17th, 2010

State workers in West Virginia spent Presidents Day staging a rally at the capitol to ask for a $1,000 cost-of-living raise and better working conditions. Meanwhile, workers in California hope a bill advances that would ease some of their furlough pain.

As part of a plan to deal with California’s budget gap, state workers have given up three days of work per month, essentially cutting the pay of some 200,000 state employees by 14 percent. The future is uncertain for these workers, as Gov. Schwarzenegger has proposed to end the layoffs come June, but cut pay and payroll by 5 percent each.

The California state Senate Public Employment and Retirement Committee will hear the bill today. It is among more than two dozen bills aimed at fueling job creation in the state, and one of those that’s been received tepidly by Republicans, who want a jobs bill more focused on creating jobs in the private sector. It would affect jobs in revenue- and tax-collecting jobs.

The rally in West Virginia focused on a small cost-of-living increase and a smaller caseload for workers in the Department of Health & Human Resources.

“There’s bigger issues to deal with, but we’re having to beg for $1,000 a year,” said Jay Miner, of the Bateman Chapter of the West Virginia Public Workers Union, UE Local 170. The demonstrators presented a 2,000-word petition of support to the governor. They also face health insurance premium hikes.

The Charleston, W.Va., public service workers are among those around the country have been staging protests in recent weeks in response to the looming threats of pay cuts, furloughs, retirement benefit losses, insurance increases and spending cutbacks that affect their jobs.

On February 4, county, city and schools workers in Detroit marched downtown to demonstrate their opposition to furloughs and pay cuts. The protest was spearheaded by AFSCME, which represents about 60,000 Michigan workers, after Wayne County Executive Robert Ficano announced that workers would have to take a day each week off without first negotiating with the union.

Furloughs are an increasingly common tactic being used by both government entities and companies to improve the bottom line. But it puts workers in perilous conditions because they often can’t apply for unemployment.

Jacqueline Price, a 12-year county veteran, told The Michigan Citizen:

It’s terrible. Ficano is calling a lay-off a furlough. We can’t file for unemployment, and we are only working 32 hours a week so we are no longer considered full-time employees.

Detroit city employees are facing a possible 10-percent pay cut. The demonstration in Michigan came just days after public-sector workers stormed the capitol in Santa Fe, N.M., to show their opposition to a proposed 2-percent pay cut for state employees and teachers.

*This post originally appeared in Working in These Times on February 16, 2010. Reprinted with permission.

About the Author: Emily Udell is a writer for Angie’s List Magazine in Indianapolis. In 2009, she finished a stint drinking bourbon and covering breaking news for The Courier-Journal in Louisville, Ky. Her eclectic media career also includes time at the Associated Press, Punk Planet (R.I.P.), The Daily Southtown in southwest Chicago, and Radio Prague in the Czech Republic. She co-hosted and co-produced In These Times’ radio show “Fire on the Prairie” from 2003 to 2006.

FMLA Retaliation Victim Wins Appeal In Sixth Circuit

Tuesday, February 16th, 2010

Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal

You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.

A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.

Here’s what happened in the case.

The Facts

Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”)  Her performance evaluations were good to excellent.

In 2002, she received an overall rating of “exceptional,” the second highest rating available that year.  In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.

In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”

The 2005 review  noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”

In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.

In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”).  The Port Huron Michigan store, like others, was required to cut a number of associate positions.

Each store received guidelines as to how it would go about making the cuts. The guidelines included an “Associate Performance Recap Form” which included :

• the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position
• consideration of  the employee’s most recent annual appraisal rating in calculating an employee’s score
• a requirement that the stores provide an explanation in the comments section — along with documentation — of a significant change in the employee’s score when compared to their annual appraisals
• a statement  that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor

When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”

The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.

The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 –just twenty days earlier — her ranking would have been high enough to avoid the RIF.

When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.
Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.

The District Court Finds For Kmart

Under the FMLA, an eligible employee:

• may take twelve week s of unpaid leave in certain situations, including a serious medical condition
• is entitled to return to his or her position or to an equivalent position held by the employee when the leave commenced
An employer may not:
•  interfere with, retrain or deny the exercise of or attempt to exercise any FMLA right  29 U.S.C.  S.2615(a)(1)
•  retaliate against an employee for invoking his or her right to take FMLA 29 U.S.C. S.2615 (a)(2)

Kmart argued that it would have fired Cutcher even if she had not been on FMLA leave. The district court agreed and threw out the case on summary judgment. Cutcher appealed.

The Sixth Circuit Court Of Appeals Reverses

The FMLA Interference Claim

Cutcher argued both in the district and the Court of Appeals  that a jury question was created as to whether she would have been fired had she not take FMLA leave because of:

• Kmart’s post-hoc rationalization of their lower RIF appraisal score, in light of the fact that there had been no prior documented complaints against her, and
• the  “LOA” notation written n the comment section of the Asssociate Performance Recap Form

The Sixth Circuit agreed:

Given Cutcher’s prior annual appraisal score, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the ‘LOA” notation on the Associate performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The FMLA Retaliation Claim
A FMLA retaliation claim requires a plaintiff to establish that:

• she was engaged in an activity protected by the FMLA
• she suffered an adverse employment action
• there was a causal connection between her protected FMLA activity and the adverse employment action

If this showing is made, the burden shifts to the employer to establish a legitimate, non-discriminatory reason for the adverse employment action. If the employer does this, the burden  shifts back to the plaintiff to prove that the employer’s reason is pretextual – in other words, not true or not worthy of belief.

Cutcher argued, and the Sixth Circuit agreed, that the same evidence which supported the connection between her FMLA leave and the termination demonstrated that Kmart’s proffered legitimate reason for firing her was pretextual.

It stated:

Specifically, the following facts show pretext: the temporal proximity between her leave and the termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisal an her RIF appraisal, and the “LOA” notation next to Cutcher’s name in the Impacted Associates Form.

The district court rejected these proffered reasons, but Cutcher has produced sufficient evidence – listed above – from which a jury could conclude that Kmart used the RIF as a means of terminating her. ……

Although she has not presented direct evidence to support that argument, the circumstantial evidence creates a question of material fact for the jury.

For the reasons stated above, we REVERSE the judgment of the district court ….

Conclusion

There are two things that strike me about this case.

For one, it is hard for me to imagine that someone at Kmart who had some understanding of employment law didn’t realize that firing someone on medical leave — who consistently had very good employment evaluation — might create a legal problem (or perhaps they just didn’t care for one reason or another).

Two, although I have seen this so many times I couldn’t begin to count, it still angers me when a district court embraces the employers version of the evidence,  completely discounts the employees evidence including any inferences which may be drawn from it, and grants judgment in favor of the company.

Even though the Supreme Court sent a crystal clear message in the Reeves v Sanderson Plumbing case (10 years ago ) that weighing of evidence by the district court is wrong  and juries are supposed to decide these cases — not the federal judges or their law clerks — this pernicious anti-employee summary judgment practice stubbornly persists.

image: 4.bp.blogspot.com

*This post originally appeared in Employee Rights Post on February 8, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Sharing Information or Cheating, You Decide

Monday, February 15th, 2010

Image: Bob RosnerI read an article about a school in Washington State that allows students to search the Internet during tests.

Yes, you read that correctly. Students at Mill Creek Middle School can go online during tests to search for information. But some schools don’t stop there; they even allow students to beam or IM information to other students during a test.

Beyond wishing that we had such tools when we were in middle school, this raises a great question about the essence of education. Is the goal to cram information in our heads, or should the goal be the know how to get the information that you need?

Let’s not forget that a student can burn a lot of time searching for information on the web. Or information that is beamed to them by a fellow student could be wrong. Rather than seeing this sharing of information as cheating, I believe that it is creating a generation of students who are more discerning about information—where to get it, how to evaluate it and how to use it.

What does this have to do with business? Plenty.

As more of us find our interactions with coworkers limited to three sentence emails, we are rapidly moving from organizations with many brains to constellations of individuals who are increasingly flying by the seat of their pants as they go through their work day.

Think about it. When was the last time that you brainstormed with a colleague over coffee or lunch? When was the last time that you networked or checked in with a colleague that you hadn’t seen in a while? Heck, when was the last time you didn’t eat lunch at your desk?

Technology was supposed to bring us all together. Yet, the connections between people are at an all time low.

Don’t get me wrong, I’m not advocating a 40 hour a week coffee klatch. But I do believe that each one of us should all institute a policy where we follow up ten emails with a phone call and twenty with an actual face-to-face conversation. (Remember those?)

Organizations talk a great deal about team work. That people are the greatest asset. Yet, when it comes to paying people, recognition and priorities, it’s all about individual effort.

Great teamwork isn’t cheating. But to achieve it organizations need to do a much better job of cultivating it, rewarding it and encouraging it. Wouldn’t it be amazing if our organizations truly became the sum of their parts?

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Also check out his newly revised best-seller “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected].

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