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News and Issues Blog: Today's Workplace

Your source for the latest developments in workplace rights and employment law, "Today's Workplace" is the blog (weblog) written by Paula Brantner, Executive Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace.

Monday, August 29, 2005
Not Everyone Gets a Five-Week Vacation
It's the time of year when it seems like everyone is getting in that last bit of vacation time while summer is still here. Parents are trying to get away with the kids before school starts. Congress is on recess. Even my own vacation partially explains the sparse blog postings as of late. But the champion when it comes to vacation time has to be our President, who is spending a whopping five weeks away from the White House at his ranch in Crawford, Texas. While the President may have been reelected in part due to his ability to relate to ordinary Americans, his lengthy vacation is one thing to which ordinary Americans, by and large, cannot relate.

As one commentator puts it: "August is the siesta month, when we shut down our brains, head on holiday, and spend money while doing nothing to earn it. We go back and forth between a deep desire to squeeze in every last moment of idle repose, and a vague sense of dread about what lies in store." (See Slate's The Mendoza Line.) No one questions the value of a vacation from work when it comes to recharging batteries, preventing burnout, increasing productivity, helping health, promoting familial bonds and increasing positive moods. (See Sun News article.) Sounds like something everyone could benefit from, right?

And few question that the rigors of the presidency demand some down time. As presidential workloads increase, experts say, so does the need for balance. "You need to take time to keep your own physical, mental, spiritual act together, or you are not going to be a good president or leader of anything," says Jim Bird, CEO of WorkLifeBalance.com. (See Christian Science Monitor article.)

However, in the U.S., there is no statutory requirement that workers receive any paid vacation time. This is in contrast to most industrialized nations. Five nations require a minimum of twenty-five paid days (five workweeks) each year: Austria, Denmark, France, Luxembourg, Sweden. Another 13 countries guarantee at least 20 days yearly, including the United Kingdom, Germany, Italy, Spain and the Netherlands. (See EPI Economic Snapshot.) Even countries hardly known for their labor standards, such as El Salvador, Indonesia and Mongolia, have all established a minimum of 10 to 15 days paid leave a year. (See Capital Times article.)

With the absence of any legally required vacation, it takes American workers years on the job to work their way up to longer vacation periods. U.S. workers employed for a year or more receive, on average, 8.9 days of vacation. After 10 years of employment workers receive just over three weeks of vacation. Vacation leave approaches four weeks after 25 years of service. Put this way, it takes an American worker 25 years to earn the same amount of vacation that is guaranteed by law in most European countries. (See EPI Economic Snapshot.)

However, when you're the President, you don't need any kind of legal protection: now that he has been re-elected, he can't be fired from his job for taking too much time off. In fact, the President recently earned the distinction of being the "most-rested" president in history (a title bestowed by Britain's Financial Times), when he surpassed Ronald Reagan's previous record of 335 days for presidential time spent at a vacation home. If President Bush keeps up his current pace for the rest of his presidency, he will have spent more than one year away from the White House during his tenure as president. (See Capital Times article.)

As the President has said about his current activities (including biking with Lance Armstrong and fishing with Idaho's governor), "I'm just kind of hanging loose." (See The Rebel Yell article.) Whatever your views about the war in Iraq and Cindy Sheehan's protest dogging the President as he vacations at his home in Crawford, Texas, it seems we can all agree that Americans need more opportunities to "hang loose," whether it be for five weeks, or even the minimum two weeks needed to really get away from it all.

While we don't expect a national campaign to hang loose will be at the top of Congress' (also MIA during the month of August) or the President's agenda any time soon, perhaps more employers can follow the lead of the president that many of them support, and voluntarily provide more vacation for their workers who so desperately need it.

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Monday, August 22, 2005
Not Even on Your Own Time
Think that who you hang out with when you're off the job is not the boss's business? Think again, says the National Labor Relations Board (NLRB), in a recent 2-1 decision by the Republican majority which takes anti-fraternization policies much further than most employees would consider possible. The NLRB's recent decision upheld a policy which made it against the rules for Guardsmark's security guards to "fraternize on duty or off duty, date, or become overly friendly with the client's employees or with co-employees." While the policy was ostensibly enacted for safety and security purposes, its chilling effect goes much further.

Guardsmark, who calls itself "the leader in security services," added to its employee handbook the following provision:
While on duty you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.

Guardsmark claimed this provision was necessary "to provide safeguards so that security will not be compromised by interpersonal relationships either between Respondent’s fellow security guards or between Respondent’s security guards and clients’ employees."

The provision was used to punish a supervisor at San Francisco's Fairmont Hotel, Daniel Higgins, when it was charged that "he was leaving his post unattended and becoming too friendly with some of the other employees." (See The Desert Sun article.) This provision was challenged by the Service Employees International Union (SEIU), who argued that this kind of provision discouraged workers from exercising their right to "self-organization, to form, join, or assist labor organizations…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..." as guaranteed by Section 7 of the National Labor Relations Act (NLRA).

After all, if you can't get overly friendly with your fellow employees, or spend time with them away from the workplace, chances are good that you're not going to feel safe complaining about work to someone you don't know very well, and certainly aren't going to take the chance of talking about banding together to join a union. Security guards are often isolated from their fellow coworkers anyway -- often working in solitary assignments and odd hours -- and this type of policy doesn't help the situation.

Even the NLRB doesn't agree about what "fraternization" means. The majority says that "we believe that employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act." Personal entanglements --now that really defines it clearly. Where does friendship end and personal entanglement begin? Even as applied to dating, it becomes problematic: does the relationship have to assume a certain level of "seriousness" before it's a personal entanglement? Does one date count? If one party is "personally entangled" on an emotional level, but the other isn't, does that mean only one party is in violation of the policy? What about those who were personally entangled before the policy went into effect: does one of the two have to quit?

However, as the dissenter, Board member Wilma B. Liebman, astutely points out:

Here, a reasonable employee certainly could understand the Respondent’ rule to sweep much more broadly than prohibiting only personal entanglements with clients and coworkers. The rule already bars dating and becoming "overly friendly" with those individuals, so a reasonable employee might well conclude that the prohibition on fraternizing must apply to something else....The primary meaning of the term "fraternize," in turn, is "to associate in a brotherly manner," Webster’s New World Dictionary 555 (2d ed. 1984), and that kind of association is the essence of workplace solidarity.

(Guardmark, Member Liebman, dissenting in part.)

This case was brought under the NLRA, because that's one of the few potential remedies for these kinds of policies. However, regardless of whether it chills union activity or not (and it seems clear that it would), should employers really be in the business of chilling employee friendships?

Amy Joyce, workplace columnist for the Washington Post, points out that "The Gallup Organization has studied workplace friendships and says that those who have friends at work, with whom they socialize both in and out of the office, are more engaged than those who don't. Studies have also shown that having friends at work lowers turnover and increases safety." (See Washington Post article.) Joyce's article, "Undercover Friends," discusses many situations where so-called "fraternization" helps both the workplace and its workers, and asks, "Will the ruling have the opposite effect and actually hurt morale and make guards less likely to discuss issues and possibly find new ways to protect the buildings in which they are stationed?"

Harold Meyerson, Post columnist, works up even more outrage about the decision:

There's a word for the kind of employer-employee relationship that the NLRB has just sanctioned. It's "feudal." The brave new world that emerges from this ruling looks a lot like the bad old world where earls and dukes had the power to control the lives of their serfs -- not just when the serfs were out tilling the fields but when they retired in the evening to the comfort of their hovels. But then the Bill of Rights in America has never reached very far into the workplace. And now, the strictures on workers' rights within the workplace are being extended without.

(See Washington Post column.)

Let's hope that too many more employers don't decide to follow Guardsmark's lead, but what's the most frightening is that after the recent NLRB decision, they now have license to establish such restrictive policies. And if there's not much to be done about under the NLRA, then there's not much to be done about it period. Does Guardsmark really want its security workforce to be comprised of isolated loners? You wouldn't think so: we'll see if that so-called safety rationale really pans out.

More Information:

Workplace Fairness: Short-Changed: Privacy: No More Secrets

American Rights at Work: Eye on the NLRB

AFL-CIO: News for Working Families


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Thursday, August 04, 2005
WF Blog Selected by Forbes as "Best of the Web"
We're taking a short break from regularly scheduled employment-related news to share some other exciting news. This blog, Today's Workplace, has been selected by Forbes.com as one of its "Best of the Web" picks in the "Career Blog" category. While Forbes is not the kind of publication we would generally expect to recognize our kind of work, we are thrilled to have been selected "from countless sites on the internet as one of a handful of featured blogs in [the Career Blog] category," especially if it helps more workers in need find their way here to the Workplace Fairness website.

Here's what the Forbes' review of Today's Workplace said about us:

Paula Brantner, the Program Director at employee rights group Workplace Fairness fills this blog with legal and political information relating to employee rights and fairness in the workplace. Serious, weighty issues such as social security, minimum wage and health care are written about with sources ranging from USA Today to Alan Greenspan. Recent blog entries include advice for blogging employees ("Given the lack of legal protections, employees need to be careful, unless they want to be blogging full-time while they're unemployed") and whistleblowers ("Whether or not whistleblowers live to regret their actions, it's absolutely essential that they continue to speak out, and that legal protection is at their disposal.").

There's some more to the review, but we invite you to go there and read it yourself: that way, the Forbes website gets the hits they hope to generate for their advertisers each day, and we don't get in trouble for violating copyright restrictions.

The Forbes award joins several others that the Workplace Fairness website has received along the way. Last year, the website as a whole made PC Magazine's list of "100 Top Websites You Didn't Know You Couldn't Live Without," in the Jobs and Money Category. There, the review advised readers that "If you're getting a raw deal at work, turn to Workplace Fairness."

In a less-exciting, but perhaps more noteworthy selection, we have selected by the editors of the Open Directory Project -- "the largest, most comprehensive human-edited directory of the Web" as one of its "Cool Sites." Founded in the spirit of the open source movement, maintained by a global community of volunteer editors, and 100% free, the Open Directory Project, also known as DMOZ, is the largest and most comprehensive directory of the Web compiled by people rather than computers. It is the raw database that Google, Netscape, AOL, and hundreds more rely upon to help their users find what they want on the Web.

By listing our site, the Open Directory Project's editors have ensured that many more people looking for employee rights information will find Workplace Fairness through the world's most popular search engines and portals. By further awarding us their "Cool Site" designation, they have judged our site "the most definitive, complete and content rich" -- or, more simply, "the best" -- they've found for information about workplace discrimination.

When you've worked hard to produce something helpful, it's always nice to receive a little recognition. Before you think it's gone to our head, we have to say that we couldn't have accomplished what we have thus far, however, if it wasn't for our regular readers, volunteers and supporters of Workplace Fairness (many of whom are also members of NELA). We welcome your feedback about our site and this blog: just e-mail us with your comments.

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Tuesday, August 02, 2005
Is Sexual Favoritism Against the Law? Maybe.
One of the reasons that so many people caution against workplace romances is the issue of sexual favoritism. What happens when the boss starts making decisions at work based upon who he or she is involved with at home? Not only can it be very messy when the relationship is over, but it can also be very messy while the relationship is in progress, especially if the person who is involved with the boss is perceived to be getting special treatment. However, unless you were the person in the relationship, and it subsequently went sour, causing you to be treated badly, there wasn't much that could be done legally. Now, the California Supreme Court has recognized that those not involved in the relationship may have some legal rights, but exactly how far this decision really goes remains to be seen.

The decision reads like a soap opera, and one commentator takes it even further, to give the parties soap opera-like names:

The story opens in a women's prison (isn't this great already?) where our young heroine, Amanda, has taken a job. She overhears the deputy warden, Ryan, arguing with an associate warden, Olivia, about his sexual affair with his secretary, Nicole. The intensity of the argument is fueled by the fact that Ryan is conducting a sexual affair with Olivia, too. Olivia and Nicole are aware of each other's relationship with Ryan, and have engaged in heated discussions about this, but it is not clear whether either of them know that he is also having an affair with Celeste, another employee at the prison. Amanda complains to Ryan's boss, Marlena, about the situation and Marlena says that she has already taken care of it. Presumably as part of Marlena's solution, Ryan is promoted to warden and transferred to another women's prison. And wouldn't you know it; Amanda gets transferred there, too. Ryan, using his new influence as a warden, manages to override an interview board's recommendation to get Nicole, who is now some sort of counselor, transferred there as well. Exactly how Olivia ended up being transferred to the same prison isn't clear, but there she is, too, along with, you guessed it, Celeste, who bragged about using her influence over Ryan to arrange her relocation. (You can see why the soap opera people would reject this; it's simply beyond belief.) Ryan's secretary at the prison, Brooke, is fired after she makes public his affair with Celeste. Meanwhile, Amanda and Celeste are competing for the same promotion. Celeste informs Amanda that Ryan would have to give the job to her (Celeste) or else she would "take him down" with her knowledge of "every scar on his body."' Celeste indeed gets the promotion despite Amanda's superior qualifications. Some months later, Celeste gets yet another promotion and becomes Amanda's boss. Meanwhile, Ryan and Nicole are seen fondling each other at "work-related social gatherings," and Ryan is found in Nicole's car when she is arrested on suspicion of driving under the influence. Olivia, Nicole and Celeste continue their emotional and public squabbling over Ryan, and Amanda complains about the work environment to the aptly named internal affairs office. Meanwhile, a new chief deputy warden, Erica, has arrived at the prison and proceeds to make Amanda's life miserable. Eventually, she attacks Amanda and holds her captive for several hours. The reason for Erica's hostility isn't clear, but Amanda had declined her repeated dinner invitations and there were rumors of an affair between Erica and Celeste. Amanda files an official complaint with internal affairs. She is told it will be kept confidential, but someone blabs to Celeste, who immediately begins harassing Amanda - following her home at one point - about her statements to the investigator. Work becomes so nightmarish that Amanda eventually resigns and files a lawsuit seeking damages. Amanda's lawsuit was eventually joined with that of another former employee who also claimed harassment and humiliation at the prison.
Kudos to James McCusker, who had the patience to sort this all out in a story for HeraldNet -- it definitely makes for more interesting reading than the court opinion, Miller v. Department of Corrections, issued on July 18. Edna Miller, known as Amanda above, and one of her coworkers, Frances Mackey (who passed away in 2003), brought their lawsuit after being forced to resign, when she couldn't endure Louis Kuykendall, the warden, and the events described above any longer.

In lawsuits like this, the individuals who bring them are often portrayed as jealous and bitter, because they aren't the ones in the relationships, or alternatively, as meddling busybodies trying to regulate the private lives of their fellow employees. However, in a situation as convoluted as this, it's clear that anyone who wasn't part of the love quadrangle (parallelogram?) would find the drama difficult to stomach on a daily basis. You have to wonder how any work was getting done, and how the prisoners all stayed confined, with the top brass spending so much time on their romantic entanglements. It's almost surprising that one of the three women involved with Kuykendall didn't end up as an inmate in the prison, although a jury might be hard pressed to convict someone who caused Kuykendall harm, given the utter boorishness of his behavior.

It's been said that "bad facts make bad law," but here's a case where some of the worst facts one could imagine -- how many workplaces have this much sexual drama? -- may make some good law. Defense lawyers are rushing to call this a crazy California anomaly, knowing that it's highly unlikely these kind of facts are likely to be repeated. See, for example, George's Employment Blawg and Jottings of an Employer's Lawyer. However, it's high time the law recognized that someone who can't sleep her way to the top (or isn't doing so, even if she could) can be just as disadvantaged in the workplace (and face just as hostile an environment) as someone whose workplace relationship is over. Or, as Phil Horowitz of the California Employment Lawyers Association (CELA) puts it, employees can no longer be ''treated as second-class citizens because they're not putting out.'' (See New York Times article.)

This hardly means that everyone who sees that their boss is involved with someone at work is now going to be running to court -- nor should they be, unless their work conditions have been adversely affected by the relationship. The California court's decision is based upon a dusted-off Equal Employment Opportunity Commission guidance (from 1990, when now-Supreme Court Justice Clarence Thomas was the EEOC Chairperson) which states,
If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as 'sexual playthings,' thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is 'sufficiently severe or pervasive "to alter the conditions of [their] employment and create an abusive working environment."
(See EEOC Policy Guidance.) This is clearly not every workplace atmosphere where a relationship is involved, but will include the most seriously counterproductive ones that every employer should have an interest in reining in.

This also doesn't mean that employers have to ban all workplace relationships -- after all, where else are you likely to meet someone these days? As Joanna Grossman sagely notes,
Indeed, it would be a shame to prevent all such relationships, given the increasing time and importance of work in our daily lives. Sexual relationships, including those begun at work, can be a positive force in women's and men's lives. But such relationships should not go beyond providing personal fulfillment to the participants, to providing a free ticket to career success at the expense of others equally, or more, deserving. In an egalitarian workplace, sex is no way to get ahead; good work is.
(See FindLaw article.) What it does mean is that if a supervisor is involved with someone at work, both parties in the relationship need to act professionally. If supervisors can't continue to act objectively and impartially between their love interests and the others they supervise, then they have no business remaining in that position. If workers involved in relationships with their superiors use that relationship to better their work situation, making their coworkers miserable in the process, then they should expect the employer to step in.

Few workplaces will be as dysfunctional as the womens' prisons in Chowchilla were. However, it's much more common that a workplace romance alters the balance of power between the employees in the office. Whether other courts pay attention to this California ruling remains to be seen, but you can bet that some employers are now paying attention. And that's where the change is likely to be a good one, even if few plaintiffs will prevail in the future under this standard.

More Information:

Workplace Fairness:
your rights: sexual harassment
practical information: sexual harassment (NEW!)

FindLaw
Joanna Grossman: When Can Consensual Sex Create a Hostile Workplace Environment?

CNN:
Court rules on sexual office affairs
(quoting Phil Horowitz, president of NELA's California affiliate, the California Employment Lawyers Association, who filed an amicus brief in the case.)

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