December 29, 2010

When the weather is frightful and work’s not delightful: the case for telework

Posted in Employee Handbooks, Telework / Telecommuting tagged , , , at 11:17 am by Tom Jacobson

When the weather outside is frightful and the fire is so delightful, employers are rarely heard singing “Let it snow, let it snow, let it snow.”  Instead, their human resources directors comb through company policies to figure out how to handle the workers who are stuck at home until the plows can clear the way back to the office.  At the same time, business owners are calculating the revenue lost because of stranded workers who cannot do their jobs.

Blizzards and other severe weather events are not the only situations that prevent workers from being physically present on the job.  Other emergencies, injuries, illnesses and family commitments can have the same impact.  To weather such storms, employers may want to consider telework arrangements.

Granted, telework is  not feasible when a person must be physically present at the job-site.  However, with advances in technology, the decreasing cost of that technology, and the increasing number of jobs that are heavily reliant on the processing of information, telework (or “telecommuting”) is a viable option in many workplaces.

Moreover, it is likely that telework options will in the not to distant future be required in more places of employment.  The federal government is already moving in that direction, for on December 9, 2010 President Barack Obama signed into law the federal Telework Enhancement Act (“TEA”).  Among other mandates, this law requires federal agencies to identify workers who are eligible for telework,  appoint telework managing officers, develop training programs and enter into written agreements with employees who work remotely.

TEA was introduced in early 2009, but it was stranded for months until the Washington, D.C. blizzards of 2009-10 forced the federal government to shut down, costing it tens of millions of dollars per day in lost productivity (B. Leonard, President Signs Federal Employment Telework Legislation, SHRM Dec. 10, 2010).  After that, the law cruised through Congress when it was seen as a means to limit lost productivity.  As large metropolitan areas once again dig out from the massive snowstorms of late 2010, it would not be surprising to see similar legislation passed at the state and local levels.

Even if it’s not because of the weather or mandated by law, telework is an increasingly viable option to increase productivity, so employers should consider adopting policies that allow it.  Such policies must, however, be carefully drafted to account for the myriad of laws that will still apply whether an employee is working at the office or at home  — in his PJ’s  — where the fire is so delightful.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.
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December 22, 2010

Bloomington-based Seagate hit with $1.9M verdict for misrepresenting job to recruit

Posted in Fraud and Misrepresentation, Hiring and Recruiting, Interviewing, Job Descriptions, Minnesota Statute 181.64 tagged , , , , at 10:45 am by Tom Jacobson

 

 

When Chandramouli Vaidyanathan accepted a job with Bloomington, MN-based Seagate Technologies, he thought he would be leading the company’s yield engineering team. The job was not what Vaidyanathan expected, so after he was transferred to a different position within the company and later dismissed along with 100 other employees during a lay-off, he sued Seagate. On November 18, 2010 a jury awarded Vaidyanathan $1.9 million.

One of Vaidyanathan’s legal theories was that Seagate had violated section 181.64 of the Minnesota Statutes (http://bit.ly/gzdFuI). This law makes it unlawful for a Minnesota employer to knowingly make false representations to induce a job recruit to relocate to accept a job offer. Employers who violate this law can be ordered to pay the employee’s damages and attorneys’ fees.

A violation of this law is also a misdemeanor, so an employer who breaks this law could be punished with a fine of up to $1,000.00 and/or ninety days in jail.

In Vaidyanathan’s case, the evidence established that Seagate made a clear and definite promise to Vaidyanathan that his job would be to lead the company’s yield engineering team. According to the Court, Seagate’s promise was, however, “made, in part, out of ignorance and a lack of sufficient information,” and Vaidyanathan testified that he never did any yield engineering work for Seagate.

After a seven-day trial, the jury concluded that Seagate knowingly made false representations to Vaidyanathan about the kind and character of his work and that Seagate’s misrepresentation induced him to take the job and move to Minnesota from Texas. The jury then awarded Vaidyanathan, whose starting salary had been $126,048.00, $1.9 million in damages. The jury’s Special Verdict can be read at http://bit.ly/grjREY.

Claims under Section 181.64 are rarely litigated, and when they are, they are often dismissed. Nevertheless, Vaidyanathan’s case stands as a vivid reminder of the importance of accurately describing a job to recruits.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

 

December 14, 2010

N-word e-mail becomes key evidence in hostile environment lawsuit

Posted in Color, Discrimination, Harassment, Race, Social Media in the Workplace, Social Networking tagged , , , , at 6:05 pm by Tom Jacobson

“We should go forward with getting this [n*****] out of here,” a Hanesbrands supervisor recently wrote in an e-mail to his boss.  The e-mail was referring to Yunusa Kenchi, a black clothing designer for Hanesbrands.  Kenchi discovered the e-mail, and two days later, he was fired.  The e-mail is now a key piece of evidence in Kenchi’s hostile environment race discrimination lawsuit against Hanesbrands.

The e-mail isn’t Kenchi’s only evidence.  He also alleges that a Caucasian subordinate was given preferential treatment and that there were discriminatory remarks made in the workplace.  For example, he claims that when someone asked about some black fabric, a co-worker pointed at him and said “Here’s the black one right here.”

In addition, the e-mail had actually been deleted after the supervisor sent it, but it resurfaced as supposedly deleted e-mails often do.  Kenchi’s attorney, Patrick Boyd, now describes the deletion at a “cover-up.”

To its credit, Hanesbrands conducted diversity training the day after the e-mail was sent, and it eventually reprimanded the supervisor who sent it.  Kenchi’s response to those efforts is essentially that they were too little, too late.

Whether Kenchi wins the $1 million-plus he is seeking will ultimately be decided by the courts.  The outcome will likely depend not only on Kenchi’s evidence of bias within Hanesbrands, but also on Hanesbrands’ evidence of its internal response to his complaints.

In most respects there is nothing particularly remarkable about this case.  Rather than being sent via e-mail, the inappropriate comments could just as easily have been made in a printed memo, in a conversation, in a Facebook post, on in any other media.  And, they could have been based on the employee’s gender, religion, age or any other protected classification.

Nevertheless, the case reminds us that despite the progress that has been made in eliminating workplace discrimination, it still exists.  It also reminds us that policy development and training, combined with prompt and appropriate internal responses to discrimination complaints, can provide solid defenses if such claims are brought in court.  Whether such defenses will work for Hanesbrands in this case remains to be seen.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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