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Your source for the latest developments in workplace rights and employment law, "Today's Workplace" is the blog (weblog) written by Paula Brantner, former Program Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace.
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Thursday, July 24, 2008
Did you get a raise today?
You might have, if you work for the minimum wage, or live in a state where the state minimum wage is tied to an increase in the federal minimum wage. Today, the federal minimum wage rose to $6.55 an hour, from $5.85. This also trigged an increase in some states which have minimum wages higher than the federal law. I guess any increase is better than nothing, but it still isn't worth more than it was in the 1950s when adjusted for inflation, and still isn't enough to keep families out of poverty. Yet there are still those who wrongly insist that raising the minimum wage costs us jobs and interferes with free enterprise -- go figure.
This is a great time to announce that Workplace Fairness has just added 50 new pages to our site, discussing the wage and hour laws in every state. (A big thank you goes to the law firm of Goldstein Demchak Baller Borden and Dardarian, who conducted the research, and Prof. Douglas Scherer, Vice President of the Workplace Fairness Board of Directors, who updated the research to reflect the current changes.) So if you'd like to see the minimum wage in your state, please go to our site's page on filing a wage claim, and select your state for up-to-date information wherever you are.
As a number of commentators pointed out today, this increase is hardly enough. As one article points out, the minimum wage hike is "a drop in the bucket compared to the increases in costs, declining labor market, and declining household wealth that consumers have experienced in the past year." (See MSNBC article.)
Jonathan Tasini at Huffington Post says,
One way to keep the minimum wage from being held hostage by politics, and to insure regular increases, is to tie the minimum wage to inflation. Ten states already do so (Arizona, Colorado, Florida, Missouri, Montana, Nevada, Ohio, Oregon, Vermont, and Washington.) (See TomPaine.com article.) These states index their minimum wages to the federal government's consumer price index, instead of the federal minimum wage, which until last year had not been raised since 1997. As Isaiah Poole of TomPaine.com tells us, fighting to index the minimum wage to inflation is the next big minimum wage battle likely to take place in the next administration.
Even after last year's battle to raise the minimum wage, opponents still trot out the same old chestnuts: that raising the minimum wage costs low-income workers (and especially minority youth) jobs; that consumers will pay more for goods and services, and that African-American unemployment will go up. (See TomPaine.com article.) Yet report after report demonstrate just how flimsy these arguments are, giving the straw man a run for his money.
For example, the Institute for Research on Labor and Employment at UC-Berkeley recently released a study that shows that the effect of raising the minimum wage on teen employment is insignificant. (See IRLE report, although if you suffer from insomnia, you might want to consider starting to wade through this one, because it is filled with enough jargon to defeat even the most committed data geeks.)
It's unfathomable why some people worry so much about minimum wage increases and not about economic developments like this one: Richest Americans See Their Income Share Grow. This article tells us that the richest 1% of Americans in 2006 garnered the highest share of the nation's adjusted gross income for two decades, and possibly the highest since 1929. But yet we can't keep those who collect minimum wage over the poverty line, forcing them to work multiple jobs just to support their families. Jonathan Tasini is right: it really is a disgrace that we even have to have this conversation.
More Information:
Department of Labor's Minimum Wage Laws in the States
Economic Policy Institute: Minimum Wage Issue Guide
You might have, if you work for the minimum wage, or live in a state where the state minimum wage is tied to an increase in the federal minimum wage. Today, the federal minimum wage rose to $6.55 an hour, from $5.85. This also trigged an increase in some states which have minimum wages higher than the federal law. I guess any increase is better than nothing, but it still isn't worth more than it was in the 1950s when adjusted for inflation, and still isn't enough to keep families out of poverty. Yet there are still those who wrongly insist that raising the minimum wage costs us jobs and interferes with free enterprise -- go figure.
This is a great time to announce that Workplace Fairness has just added 50 new pages to our site, discussing the wage and hour laws in every state. (A big thank you goes to the law firm of Goldstein Demchak Baller Borden and Dardarian, who conducted the research, and Prof. Douglas Scherer, Vice President of the Workplace Fairness Board of Directors, who updated the research to reflect the current changes.) So if you'd like to see the minimum wage in your state, please go to our site's page on filing a wage claim, and select your state for up-to-date information wherever you are.
As a number of commentators pointed out today, this increase is hardly enough. As one article points out, the minimum wage hike is "a drop in the bucket compared to the increases in costs, declining labor market, and declining household wealth that consumers have experienced in the past year." (See MSNBC article.)
Jonathan Tasini at Huffington Post says,
[W]e should keep in mind that, at the grand new sum of $6.55 an hour, the minimum wage is a disgrace and a sad commentary about the state of our social safety net, the economy and our political system. If you do the math, it's pretty stark. If you worked 40 hours a week, 52 weeks a year, you would earn $13,624. Not a single day off. No sick days. No health care. No pension.(See Huffington Post article.) Tasini goes on to point out that
- adjusted for inflation, the minimum wage today is what it was in the 1950s -- more than half a century ago.
- To really make ends meet at minimum wage pay, two people in a household have to work three full-time minimum wage jobs.
One way to keep the minimum wage from being held hostage by politics, and to insure regular increases, is to tie the minimum wage to inflation. Ten states already do so (Arizona, Colorado, Florida, Missouri, Montana, Nevada, Ohio, Oregon, Vermont, and Washington.) (See TomPaine.com article.) These states index their minimum wages to the federal government's consumer price index, instead of the federal minimum wage, which until last year had not been raised since 1997. As Isaiah Poole of TomPaine.com tells us, fighting to index the minimum wage to inflation is the next big minimum wage battle likely to take place in the next administration.
Even after last year's battle to raise the minimum wage, opponents still trot out the same old chestnuts: that raising the minimum wage costs low-income workers (and especially minority youth) jobs; that consumers will pay more for goods and services, and that African-American unemployment will go up. (See TomPaine.com article.) Yet report after report demonstrate just how flimsy these arguments are, giving the straw man a run for his money.
For example, the Institute for Research on Labor and Employment at UC-Berkeley recently released a study that shows that the effect of raising the minimum wage on teen employment is insignificant. (See IRLE report, although if you suffer from insomnia, you might want to consider starting to wade through this one, because it is filled with enough jargon to defeat even the most committed data geeks.)
It's unfathomable why some people worry so much about minimum wage increases and not about economic developments like this one: Richest Americans See Their Income Share Grow. This article tells us that the richest 1% of Americans in 2006 garnered the highest share of the nation's adjusted gross income for two decades, and possibly the highest since 1929. But yet we can't keep those who collect minimum wage over the poverty line, forcing them to work multiple jobs just to support their families. Jonathan Tasini is right: it really is a disgrace that we even have to have this conversation.
More Information:
Department of Labor's Minimum Wage Laws in the States
Economic Policy Institute: Minimum Wage Issue Guide
Comments:
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It seems to have finally occurred to the Department of Labor that there is about to be a change in administrations in a few months. It's otherwise hard to explain why, after 7 1/2 years, DOL is suddenly and stealthily trying to make it harder for you to be protected from toxic chemicals in the workplace. If DOL could sneak in a new regulation before there's a new president, Secretary of Labor Elaine Chao can continue to boost her legacy of harming the very workers her job it is to protect.
It was front page news in the Washington Post: U.S. Rushes to Change Workplace Toxin Rules. The Department of Labor is trying to push through a rule "making it tougher to regulate workers' on-the-job exposure to chemicals and toxins." Instead of disclosing this rule change publicly in a regulatory plan, allowing for input from agency staff, lawyers and outside experts, DOL instead quietly submitted the proposal to the White House's Office of Management & Budget (OMB). After the draft rule is published, the public will only have 30 days for comment.
While the draft rule has not yet been made public, an early draft reviewed by the Washington Post shows that the agency is trying to change the process by which the risk of chemical exposure is assessed. Current policy requires an assumption that workers will stay in a job and be exposed to the same toxins for 45 years. Businesses have complained that this overstates the risk that workers are exposed to, as most workers nowadays don't stay in their jobs that long. (See New York Sun article.)
While that may be true for most, there are some who do stay in a certain workplace (or in the same industry) that long, and their high level of exposure should serve as a baseline for everyone else. (With the ability to retire comfortably dramatically affected in the last several years, workers are forced to have even longer careers, and it would be nice if they were in good enough health to work as long as they need to and still retire healthy.) As the New York Sun article itself concedes, in many of these jobs, workers may work overtime and have less vacation time, than contemplated by the rule, so may have more intense exposure in shorter time periods than 45 years.
The new policy would also make it more difficult (by adding an additional round of challenges) to set new limits on workplace exposure. As epidemiologist and workplace safety professor David Michaels points out, "This is a guarantee to keep any more worker safety regulation from ever coming out of OSHA." (See Washington Post article.)
Submitting this proposal in such a rush even contradicts the Administration's own edict from Chief of Staff Joshua Bolten, who had ordered agencies to submit all proposed regulations by June 1 and "resist the historical tendency of administrations to increase regulatory activity in their final months." (See Washington Post article.) It seems like Secretary Chao just couldn't resist, given that in the last 7 1/2 years, the Department of Labor has only issued one worker-safety regulation, and that was one required by a court order.
After the first Post article was published, the Democratic leaders of both committees responsible for workplace safety, Sen. Edward Kennedy of the Senate Health Education Labor and Pensions (HELP) Committee and Rep. George Miller of the House Committee on Education and Labor, responded with outrage at DOL's eleventh-hour attempt. Rep. Miller says,
With the light now shining on this proposed change, perhaps it can be stopped before it goes into effect. Otherwise, it will depend on who is elected as President. We could indeed see a swift regulatory reversal like we saw when President Bush took office: one of his first acts as President was to reverse OSHA's ergonomic regulation that the Clinton Administration had spent years to carefully create, and which finally took effect four days before President Clinton left office. (See CNN article.) Or we might not, with this close-to-midnight change becoming the new standard we have to live with (or not live with, given its impact.)
Just another reason why the election matters for workers, so be sure you're registered to vote.
More Information:
Workplace Health and Safety Protections
It was front page news in the Washington Post: U.S. Rushes to Change Workplace Toxin Rules. The Department of Labor is trying to push through a rule "making it tougher to regulate workers' on-the-job exposure to chemicals and toxins." Instead of disclosing this rule change publicly in a regulatory plan, allowing for input from agency staff, lawyers and outside experts, DOL instead quietly submitted the proposal to the White House's Office of Management & Budget (OMB). After the draft rule is published, the public will only have 30 days for comment.
While the draft rule has not yet been made public, an early draft reviewed by the Washington Post shows that the agency is trying to change the process by which the risk of chemical exposure is assessed. Current policy requires an assumption that workers will stay in a job and be exposed to the same toxins for 45 years. Businesses have complained that this overstates the risk that workers are exposed to, as most workers nowadays don't stay in their jobs that long. (See New York Sun article.)
While that may be true for most, there are some who do stay in a certain workplace (or in the same industry) that long, and their high level of exposure should serve as a baseline for everyone else. (With the ability to retire comfortably dramatically affected in the last several years, workers are forced to have even longer careers, and it would be nice if they were in good enough health to work as long as they need to and still retire healthy.) As the New York Sun article itself concedes, in many of these jobs, workers may work overtime and have less vacation time, than contemplated by the rule, so may have more intense exposure in shorter time periods than 45 years.
The new policy would also make it more difficult (by adding an additional round of challenges) to set new limits on workplace exposure. As epidemiologist and workplace safety professor David Michaels points out, "This is a guarantee to keep any more worker safety regulation from ever coming out of OSHA." (See Washington Post article.)
Submitting this proposal in such a rush even contradicts the Administration's own edict from Chief of Staff Joshua Bolten, who had ordered agencies to submit all proposed regulations by June 1 and "resist the historical tendency of administrations to increase regulatory activity in their final months." (See Washington Post article.) It seems like Secretary Chao just couldn't resist, given that in the last 7 1/2 years, the Department of Labor has only issued one worker-safety regulation, and that was one required by a court order.
After the first Post article was published, the Democratic leaders of both committees responsible for workplace safety, Sen. Edward Kennedy of the Senate Health Education Labor and Pensions (HELP) Committee and Rep. George Miller of the House Committee on Education and Labor, responded with outrage at DOL's eleventh-hour attempt. Rep. Miller says,
For nearly eight years, this administration has consistently failed to respond in a meaningful way to the real health and safety threats workers face while on the job. But now they will stop at nothing to rush through a secret rule that will tie the hands of health and safety experts.(See Washington Post article.)
With the light now shining on this proposed change, perhaps it can be stopped before it goes into effect. Otherwise, it will depend on who is elected as President. We could indeed see a swift regulatory reversal like we saw when President Bush took office: one of his first acts as President was to reverse OSHA's ergonomic regulation that the Clinton Administration had spent years to carefully create, and which finally took effect four days before President Clinton left office. (See CNN article.) Or we might not, with this close-to-midnight change becoming the new standard we have to live with (or not live with, given its impact.)
Just another reason why the election matters for workers, so be sure you're registered to vote.
 |
More Information:
Workplace Health and Safety Protections
Comments:
Elaine Chao does nothing for 7 1/2 years, and then tries to pull this fast one. The fact that she's trying to do this at the last minute and under the radar tells us that there are powerful special interests at work here...or maybe just the personal interests of the president, who has demonstrated time and again that that's what he is about - being rich and powerful, damn you and me.
And Chao is a disgrace. Under her leadership, the Department of Labor has been transformed into nothing less than than the meek, biddable woman happy to walk two steps behind the alpha male.
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And Chao is a disgrace. Under her leadership, the Department of Labor has been transformed into nothing less than than the meek, biddable woman happy to walk two steps behind the alpha male.
# posted by 
: 4:29 PM
: 4:29 PMFriday, July 18, 2008
Wondering why you've been hearing more from Workplace Fairness lately? One very big reason is a donation that we recently received as part of a consumer class action lawsuit. We owe some very huge thanks to Dworken & Bernstein Co., L.P.A., and Grange Insurance, whose settlement has made it possible for Workplace Fairness to resume staffed operations and carry out its mission to educate workers in a more comprehensive and effective way.
The 1994 consumer class action suit [Martin v. Grange Mutual Insurance Co.] alleged that consumers were incorrectly charged for uninsured motorist insurance. As part of the settlement of the case, Dworken and Bernstein and Grange agreed that the unclaimed funds would go to the benefit of national and Ohio-based nonprofit organizations, a practice known as cy pres.
"We commend Grange for working with us to use unclaimed funds for the benefit of charitable and non-profits in a broad range of areas, including help to the homeless, hunger prevention, drug and alcohol addiction prevention, fair treatment of employees, and a host of others," said plaintiff's counsel Patrick J. Perotti of Dworken & Bernstein. The parties chose 33 organizations to share in the unclaimed funds from the settlement of over $10 million, the largest class action residual fund donated to charity in history.
"We encourage attorneys around the country to provide for charitable reverter of a reasonable portion of unclaimed funds in all class suits. The practice can provide needed help to the community in a very difficult economic time," said Perotti. If you'd like to hear Pat talking more about the practice of using cy pres funds to help worthy organizations, check out his YouTube video here, where he explains how this process works:
Cathy Ventrell-Monsees, president of Workplace Fairness, which provides information to workers about their legal rights in the workplace, said her organization is honored to be part of the resolution of this important case. "With the residual funds, we will be able to help thousands of workers to understand, protect and strengthen their rights through our website at www.workplacefairness.org," she said.
The funds will be used to enable Workplace Fairness to resume staffed operations, with the hiring of Paula Brantner (that's me) as Executive Director, and to assist in completing Workplace Fairness’ program priorities, including making the organization’s website fully accessible to users with disabilities.
We owe Pat Perotti an enormous debt of gratitude, but as he'll be the first to tell you, he has done something with this case that many attorneys have the opportunity to do, but don't always do when settling cases. Instead of allowing unclaimed funds to revert to the alleged wrongdoer, attorneys on both sides have an opportunity to benefit their local communities and worthwhile causes by using the cy pres mechanism to distribute funds. Pat is adamant that he will not settle cases without making this provision, and feels that other attorneys should insist on doing the same.
For additional information about the organizations participating in the settlement proceeds, see:
ohiolawyersgiveback.org
You'll also see highlights from the July 18 luncheon in Cleveland, where lots of happy people from great organizations talked about how this donation has transformed their work in extraordinary ways.
The 1994 consumer class action suit [Martin v. Grange Mutual Insurance Co.] alleged that consumers were incorrectly charged for uninsured motorist insurance. As part of the settlement of the case, Dworken and Bernstein and Grange agreed that the unclaimed funds would go to the benefit of national and Ohio-based nonprofit organizations, a practice known as cy pres.
"We commend Grange for working with us to use unclaimed funds for the benefit of charitable and non-profits in a broad range of areas, including help to the homeless, hunger prevention, drug and alcohol addiction prevention, fair treatment of employees, and a host of others," said plaintiff's counsel Patrick J. Perotti of Dworken & Bernstein. The parties chose 33 organizations to share in the unclaimed funds from the settlement of over $10 million, the largest class action residual fund donated to charity in history.
"We encourage attorneys around the country to provide for charitable reverter of a reasonable portion of unclaimed funds in all class suits. The practice can provide needed help to the community in a very difficult economic time," said Perotti. If you'd like to hear Pat talking more about the practice of using cy pres funds to help worthy organizations, check out his YouTube video here, where he explains how this process works:
Cathy Ventrell-Monsees, president of Workplace Fairness, which provides information to workers about their legal rights in the workplace, said her organization is honored to be part of the resolution of this important case. "With the residual funds, we will be able to help thousands of workers to understand, protect and strengthen their rights through our website at www.workplacefairness.org," she said.
The funds will be used to enable Workplace Fairness to resume staffed operations, with the hiring of Paula Brantner (that's me) as Executive Director, and to assist in completing Workplace Fairness’ program priorities, including making the organization’s website fully accessible to users with disabilities.
We owe Pat Perotti an enormous debt of gratitude, but as he'll be the first to tell you, he has done something with this case that many attorneys have the opportunity to do, but don't always do when settling cases. Instead of allowing unclaimed funds to revert to the alleged wrongdoer, attorneys on both sides have an opportunity to benefit their local communities and worthwhile causes by using the cy pres mechanism to distribute funds. Pat is adamant that he will not settle cases without making this provision, and feels that other attorneys should insist on doing the same.
For additional information about the organizations participating in the settlement proceeds, see:
ohiolawyersgiveback.org
You'll also see highlights from the July 18 luncheon in Cleveland, where lots of happy people from great organizations talked about how this donation has transformed their work in extraordinary ways.
Comments:
Post a Comment
Friday, June 13, 2008
When I go to a restaurant by myself, one of my pet peeves is to be asked, "just one?" like it's a sign of my own personal failure to be there without another guest. A public employee in Oregon can probably relate -- she just had her own version of "just one" shot down by the U.S. Supreme Court. If you've been treated arbitrarily or irrationally, you better find someone else to join you at the table, says the Court.
Anup Engquist, a woman from India, sued her employer, the Oregon Department of Agriculture, after years of torment at the hands of a coworker, Joseph Hyatt, that ultimately resulted in her termination, allegedly for financial reasons. Over the years that he worked with Engquist, Hyatt refused to give her information she needed to do her job, made false, derogatory statements about her, and constantly monitored her, even when she went to the ladies room. (See Petitioner's Brief at 3). Even after Hyatt was twice denied a managerial promotion, and transferred to another department in the same building, he continued to torment Engquist. Ultimately, he worked with another manager, John Szczepanski, to get Engquist laid off, ostensibly for financial reasons.
Engquist filed a lawsuit challenging her treatment, and in a trial on the merits of her case, introduced a mountain of evidence showing Hyatt's hatred of Engquist and his constant efforts to undermine her, which the jury believed in awarding a verdict of $425,000 in damages in her favor, not because she was fired due to her race, sex, or national origin, but because the jury believed she had been treated arbitrarily and unfairly. However, that verdict was appealed, and a 2-1 panel from the Ninth Circuit Court of Appeals overturned the verdict in her favor. (See Ninth Circuit opinion.) Engquist then appealed to the U.S. Supreme Court.
The Supreme Court ruled against Engquist 6-3, in an opinion written by Chief Justice Roberts. (See Supreme Court opinion.) The primary issue before the Court was whether Engquist could bring an Equal Protection argument demonstrating that she had been treated arbitrarily and irrationally, if she was a "class of one," -- the only person making this argument. Generally, equal protection cases are brought by individuals claiming unfair treatment as a result of their membership in a particular class: race, sex, national origin, etc.) However, although Engquist was an Indian woman, the portion of the case before the Supreme Court was whether she could be fired for "arbitrary, vindictive, and malicious reasons." This was considered a "class of one" equal protection claim.
A "class of one" claim appeared to be permitted by an earlier Supreme Court case which involved housing discrimination, and a few lower courts had applied it in other public employee cases. But the Supreme Court had never directly applied the theory in cases involving public employees before, and ruled that it was not appropriate to do so in this setting either. Essentially, the Court ruled that the government as a public employer has more leeway to act arbitrarily than it does when using its power against ordinary citizens, and that allowing the "class of one" claims to move forward would permit too much litigation against governmental employers.
Chief Justice Roberts, in writing for the Court, states:
(Supreme Court opinion at 12.)
According to this decision, if a public employee is treated differently than other employees, he or she must show not just that they were treated differently, but that the reason for this treatment is due to their membership in a protected group.
(Supreme Court opinion at 12-13.)
So public employees who have been treated arbitrarily and irrationally by their employers have to bring someone to court with them, in essence demonstrating that there are other members of their protected class who would have been treated the same way, while others not in their protected class were treated more advantageously.
If the answer is "just one," then the federal courts will "just say no," which denied Engquist her place at the table, and will do the same for other government employees who can't show they are part of a class of people treated differently than others.
Anup Engquist, a woman from India, sued her employer, the Oregon Department of Agriculture, after years of torment at the hands of a coworker, Joseph Hyatt, that ultimately resulted in her termination, allegedly for financial reasons. Over the years that he worked with Engquist, Hyatt refused to give her information she needed to do her job, made false, derogatory statements about her, and constantly monitored her, even when she went to the ladies room. (See Petitioner's Brief at 3). Even after Hyatt was twice denied a managerial promotion, and transferred to another department in the same building, he continued to torment Engquist. Ultimately, he worked with another manager, John Szczepanski, to get Engquist laid off, ostensibly for financial reasons.
Engquist filed a lawsuit challenging her treatment, and in a trial on the merits of her case, introduced a mountain of evidence showing Hyatt's hatred of Engquist and his constant efforts to undermine her, which the jury believed in awarding a verdict of $425,000 in damages in her favor, not because she was fired due to her race, sex, or national origin, but because the jury believed she had been treated arbitrarily and unfairly. However, that verdict was appealed, and a 2-1 panel from the Ninth Circuit Court of Appeals overturned the verdict in her favor. (See Ninth Circuit opinion.) Engquist then appealed to the U.S. Supreme Court.
The Supreme Court ruled against Engquist 6-3, in an opinion written by Chief Justice Roberts. (See Supreme Court opinion.) The primary issue before the Court was whether Engquist could bring an Equal Protection argument demonstrating that she had been treated arbitrarily and irrationally, if she was a "class of one," -- the only person making this argument. Generally, equal protection cases are brought by individuals claiming unfair treatment as a result of their membership in a particular class: race, sex, national origin, etc.) However, although Engquist was an Indian woman, the portion of the case before the Supreme Court was whether she could be fired for "arbitrary, vindictive, and malicious reasons." This was considered a "class of one" equal protection claim.
A "class of one" claim appeared to be permitted by an earlier Supreme Court case which involved housing discrimination, and a few lower courts had applied it in other public employee cases. But the Supreme Court had never directly applied the theory in cases involving public employees before, and ruled that it was not appropriate to do so in this setting either. Essentially, the Court ruled that the government as a public employer has more leeway to act arbitrarily than it does when using its power against ordinary citizens, and that allowing the "class of one" claims to move forward would permit too much litigation against governmental employers.
Chief Justice Roberts, in writing for the Court, states:
Thus, the class-of-one theory of equal protection—which presupposes that like
individuals should be treated alike, and that to treat them differently is to
classify them in a way that must survive at least rationality review—is simply a
poor fit in the public employment context. To treat employees differently is not
to classify them in a way that raises equal protection concerns. Rather, it is
simply to exercise the broad discretion that typically characterizes the
employer-employee relationship.
(Supreme Court opinion at 12.)
According to this decision, if a public employee is treated differently than other employees, he or she must show not just that they were treated differently, but that the reason for this treatment is due to their membership in a protected group.
Indeed, our cases make clear that the Equal Protection Clause is implicated when
the government makes class-based decisions in the employment context, treating
distinct groups of individuals categorically differently.
(Supreme Court opinion at 12-13.)
So public employees who have been treated arbitrarily and irrationally by their employers have to bring someone to court with them, in essence demonstrating that there are other members of their protected class who would have been treated the same way, while others not in their protected class were treated more advantageously.
If the answer is "just one," then the federal courts will "just say no," which denied Engquist her place at the table, and will do the same for other government employees who can't show they are part of a class of people treated differently than others.
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Thursday, June 12, 2008
Unfortunately, we live in a world where harassment and retaliation cases haven't gone away, and there are still some pretty egregious ones there. But a couple of suits filed recently caught my eye in that they involve the actions of the employer's spouse. In both cases, powerful people brought their spouses into their workplace to work with them, but their employees allege their boss wasn't doing enough to curb their spouse's egregious behavior. These cases highlight the worst side of nepotism, where bosses don't hold their spouses to the same standards of behavior to which the rest of their employees would be subjected.
Wendy Williams is a national radio personality and host of the show "The Wendy Williams Experience," also featured on VH-1. Kevin Hunter is Ms. Williams' husband and manager. Williams' talent booker and publicist Nicole Spence recently filed a lawsuit against the show, its broadcasting company, Williams, and Hunter, alleging that due to Hunter's conduct, she felt unsafe at the office.
Ms. Spence alleges that Hunter screamed and cursed at her at work, and called her late at night to tell her about his sexual fantasies and proposition her. When she refused his advances, Ms. Spence claims that Hunter's conduct became even more threatening. Ms. Spence also feared for her safety because of the way Hunter treated his wife. She claims that Hunter once stormed into an office meeting, "pinning (his wife) against the wall with his hand around her neck, choking her while repeatedly pounding his fist into the wall directly by her head" -- all because, she says, Williams failed to quit smoking. (See Associated Press article.) Another explosive allegation contained in the lawsuit is that Hunter attempted to find a hit man to have one of Williams' on-air rivals killed after she bad-mouthed Williams. (See Black Voices blog.)
Even after the lawsuit was filed, Ms. Spence continues to work at the station. (I bet the environment is a little tense these days, however, and it sounds like she might want to watch her back.) As is typical, Williams has denied the allegations, saying that "Her allegations are totally false. This b*tch is out of her mind...." Hunter added that the allegations were "so far from the truth. It's insane." (See New York Post article.)
In Kansas City (my former home), Mayor Mark Funkhouser, who has already weathered several scandals since taking office in May 2007 (see Kansas City Star article), now has his hands full with a new lawsuit filed by a former aide, Ruth Bates, that primarily focuses on the behavior of Funkhouser's wife, Gloria Squitiro. (See Petition for Damages, Bates v. City of Kansas City.) The legal issues raised by the case are compounded by Squitiro's status in the mayor's office as an unpaid full-time volunteer -- albeit one that speaks on the mayor's behalf. (See Kansas City Star article.)
Ms. Bates volunteered with Mayor Funkhouser's campaign while he was running for office, and says she was asked to attend campaign events with her son and his friends, who were often the only African-Americans at those events. (See Kansas City Star article.) (Funkhouser ran against a popular African-American city council member, Alvin Brooks, who was supported by many local black politicians). After Funkhouser narrowly won election, Ms. Bates observed that the majority of the aides Funkhouser hired were white men. After Ms. Bates complained, she was offered a staff post as Administrator of Boards and Commissions. (See Petition for Damages, Bates v. City of Kansas City.)
However, Ms. Bates claims that she was the lowest paid full-time member of the mayor's stuff, and was paid considerably less than other aides with less experience and education than she had. (Salary information for city employees, which is public, is available here: Kansas City employees database.) She also claims that Squitiro called her "Mammy," while calling the only other African-American employee in the office "Bernie Mac" and "Mammy." Squitiro is alleged to have said, when discussing attendance at a meeting in a Hispanic neighborhood, "I hope they don't throw hot tamales at us." Squitiro is also accused of making a number of sexually-charged comments in the office, and when another employee complained, responded that she was the only "fun" employee in the office. (See Petition for Damages, Bates v. City of Kansas City.)
Bates filed an administrative claim with the Missouri Commission on Human Rights last fall, and claims to have suffered additional retaliation after her claim was filed, including being denied the small raise she was promised after complaining about her low salary, and termination on May 19, after she was told she would have to leave the Mayor's office for a position in another department. (See Kansas City Star article.)
The mayor's office has not commented on the allegations, except to tell supporters, "We are entering a difficult time again, and as such, we also know that our supporters will be sharing the difficulty with us as well. We apologize for this, and, as always, we are working hard to continue to earn and keep your faith and trust." (See Kansas City Star article.) Funkhouser has also declined to change Squitiro's volunteer role with his office.
If the allegations in these cases are true, you have a situation where employees have the ability to wield tremendous power over other employees, not by virtue of their role as a supervisor or manager, but by virtue of their relationship with the head of the office, which in each case is the powerful figurehead and the reason for the office's existence. There would be no "Wendy Williams Experience" without Wendy Williams, and Mark Funkhouser is the elected official who heads the mayor's office.
Because the office, in essence, revolves around them, they have the authority to install their spouse as a staff member in the office. It's safe to say that there was no hiring mechanism when their spouses were brought on board. And, as these employees have learned, there's no real way to complain when the spouse's behavior is out of line. These figureheads are unlikely to fire their spouses without it having a significant impact on the relationship, and they aren't going to fire themselves for making bad personnel decision.
With the high percentage of relationships where both partners work, and the ever-increasing number of couples who meet at the workplace, we are likely to see more situations where a spouse's behavior adversely impacts the office environment. It's not something that it's easy to legislate around. While there are instances where there are legal limits on nepotism in government offices, here, where Squitiro is a volunteer, it may be more difficult to limit her influence. And corporate policies are unlikely to make a difference in situations where the company is structured around the office figurehead who wants to hire her spouse.
But all workers are entitled to a harassment and retaliation-free workplace, and so going to court may be the only way to resolve some of the most egregious situations where a spouse's behavior is seriously out of line. As these lawsuits progress, we'll see if having to take such a drastic step is the only real solution for Ms. Bates and Ms. Spence.
Wendy Williams is a national radio personality and host of the show "The Wendy Williams Experience," also featured on VH-1. Kevin Hunter is Ms. Williams' husband and manager. Williams' talent booker and publicist Nicole Spence recently filed a lawsuit against the show, its broadcasting company, Williams, and Hunter, alleging that due to Hunter's conduct, she felt unsafe at the office.
Ms. Spence alleges that Hunter screamed and cursed at her at work, and called her late at night to tell her about his sexual fantasies and proposition her. When she refused his advances, Ms. Spence claims that Hunter's conduct became even more threatening. Ms. Spence also feared for her safety because of the way Hunter treated his wife. She claims that Hunter once stormed into an office meeting, "pinning (his wife) against the wall with his hand around her neck, choking her while repeatedly pounding his fist into the wall directly by her head" -- all because, she says, Williams failed to quit smoking. (See Associated Press article.) Another explosive allegation contained in the lawsuit is that Hunter attempted to find a hit man to have one of Williams' on-air rivals killed after she bad-mouthed Williams. (See Black Voices blog.)
Even after the lawsuit was filed, Ms. Spence continues to work at the station. (I bet the environment is a little tense these days, however, and it sounds like she might want to watch her back.) As is typical, Williams has denied the allegations, saying that "Her allegations are totally false. This b*tch is out of her mind...." Hunter added that the allegations were "so far from the truth. It's insane." (See New York Post article.)
In Kansas City (my former home), Mayor Mark Funkhouser, who has already weathered several scandals since taking office in May 2007 (see Kansas City Star article), now has his hands full with a new lawsuit filed by a former aide, Ruth Bates, that primarily focuses on the behavior of Funkhouser's wife, Gloria Squitiro. (See Petition for Damages, Bates v. City of Kansas City.) The legal issues raised by the case are compounded by Squitiro's status in the mayor's office as an unpaid full-time volunteer -- albeit one that speaks on the mayor's behalf. (See Kansas City Star article.)
Ms. Bates volunteered with Mayor Funkhouser's campaign while he was running for office, and says she was asked to attend campaign events with her son and his friends, who were often the only African-Americans at those events. (See Kansas City Star article.) (Funkhouser ran against a popular African-American city council member, Alvin Brooks, who was supported by many local black politicians). After Funkhouser narrowly won election, Ms. Bates observed that the majority of the aides Funkhouser hired were white men. After Ms. Bates complained, she was offered a staff post as Administrator of Boards and Commissions. (See Petition for Damages, Bates v. City of Kansas City.)
However, Ms. Bates claims that she was the lowest paid full-time member of the mayor's stuff, and was paid considerably less than other aides with less experience and education than she had. (Salary information for city employees, which is public, is available here: Kansas City employees database.) She also claims that Squitiro called her "Mammy," while calling the only other African-American employee in the office "Bernie Mac" and "Mammy." Squitiro is alleged to have said, when discussing attendance at a meeting in a Hispanic neighborhood, "I hope they don't throw hot tamales at us." Squitiro is also accused of making a number of sexually-charged comments in the office, and when another employee complained, responded that she was the only "fun" employee in the office. (See Petition for Damages, Bates v. City of Kansas City.)
Bates filed an administrative claim with the Missouri Commission on Human Rights last fall, and claims to have suffered additional retaliation after her claim was filed, including being denied the small raise she was promised after complaining about her low salary, and termination on May 19, after she was told she would have to leave the Mayor's office for a position in another department. (See Kansas City Star article.)
The mayor's office has not commented on the allegations, except to tell supporters, "We are entering a difficult time again, and as such, we also know that our supporters will be sharing the difficulty with us as well. We apologize for this, and, as always, we are working hard to continue to earn and keep your faith and trust." (See Kansas City Star article.) Funkhouser has also declined to change Squitiro's volunteer role with his office.
If the allegations in these cases are true, you have a situation where employees have the ability to wield tremendous power over other employees, not by virtue of their role as a supervisor or manager, but by virtue of their relationship with the head of the office, which in each case is the powerful figurehead and the reason for the office's existence. There would be no "Wendy Williams Experience" without Wendy Williams, and Mark Funkhouser is the elected official who heads the mayor's office.
Because the office, in essence, revolves around them, they have the authority to install their spouse as a staff member in the office. It's safe to say that there was no hiring mechanism when their spouses were brought on board. And, as these employees have learned, there's no real way to complain when the spouse's behavior is out of line. These figureheads are unlikely to fire their spouses without it having a significant impact on the relationship, and they aren't going to fire themselves for making bad personnel decision.
With the high percentage of relationships where both partners work, and the ever-increasing number of couples who meet at the workplace, we are likely to see more situations where a spouse's behavior adversely impacts the office environment. It's not something that it's easy to legislate around. While there are instances where there are legal limits on nepotism in government offices, here, where Squitiro is a volunteer, it may be more difficult to limit her influence. And corporate policies are unlikely to make a difference in situations where the company is structured around the office figurehead who wants to hire her spouse.
But all workers are entitled to a harassment and retaliation-free workplace, and so going to court may be the only way to resolve some of the most egregious situations where a spouse's behavior is seriously out of line. As these lawsuits progress, we'll see if having to take such a drastic step is the only real solution for Ms. Bates and Ms. Spence.
Comments:
Interesting stories.
It will be interesting to see how these roll out eventually.
Workplace protocols are changing definitely, but there is still no room for bad behavior.
I will list your site as a resource for the career blog readers at BullsEyeResumes. We would really appreciate it if you added our blog as a resource on your site as well.
Marcia
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It will be interesting to see how these roll out eventually.
Workplace protocols are changing definitely, but there is still no room for bad behavior.
I will list your site as a resource for the career blog readers at BullsEyeResumes. We would really appreciate it if you added our blog as a resource on your site as well.
Marcia
Monday, June 02, 2008
I am thrilled to announce that today, June 2, I return to work with Workplace Fairness as the organization's Executive Director. Workplace Fairness' mission of providing information and education to workers and representing the pro-worker voice in public policy debates is as viable as it has ever been in a workplace environment that is becoming ever more inhospitable to workers. I will be working with the WF Board of Directors to ensure the organization is again able to be a leading voice for workers in this country by continuing our programs, revitalizing our website, and maintaining financial stability.
In March 2007, Workplace Fairness was unfortunately required to eliminate its staff for financial reasons, and I had to leave the organization for whom I had worked since 2002. I joined Working America, the AFL-CIO's community affiliate for non-union workers, as Program Director. In the meantime, the WF Board of Directors, and especially President Cathy Ventrell-Monsees, stepped in to oversee the organization's operations and to keep it functioning without paid staff. In December 2007, I resumed work on this blog, Today's Workplace, and our weekly e-newsletter, Workplace Week.
Some recent improvements in our financial situation have made it possible for WF to resume operations, and I am pleased to have the opportunity to rejoin Workplace Fairness at this critical time. Shortly after Workplace Fairness became unstaffed, we learned that the organization's website, www.workplacefairness.org, was a Webby nominee, as a top site in the Employment category. A top priority will be continuing our website's innovation and further strengthening its value as a resource for workers.
We look forward to announcing many more positive developments in the days to come, and thank you for your ongoing support during our most difficult times. I look forward to speaking with many of you personally in the next few months to hear more about what you would like to see Workplace Fairness achieve. We will continue to work with you to ensure that workers have the information they need and a voice in the policies that affect them most.
In March 2007, Workplace Fairness was unfortunately required to eliminate its staff for financial reasons, and I had to leave the organization for whom I had worked since 2002. I joined Working America, the AFL-CIO's community affiliate for non-union workers, as Program Director. In the meantime, the WF Board of Directors, and especially President Cathy Ventrell-Monsees, stepped in to oversee the organization's operations and to keep it functioning without paid staff. In December 2007, I resumed work on this blog, Today's Workplace, and our weekly e-newsletter, Workplace Week.
Some recent improvements in our financial situation have made it possible for WF to resume operations, and I am pleased to have the opportunity to rejoin Workplace Fairness at this critical time. Shortly after Workplace Fairness became unstaffed, we learned that the organization's website, www.workplacefairness.org, was a Webby nominee, as a top site in the Employment category. A top priority will be continuing our website's innovation and further strengthening its value as a resource for workers.
We look forward to announcing many more positive developments in the days to come, and thank you for your ongoing support during our most difficult times. I look forward to speaking with many of you personally in the next few months to hear more about what you would like to see Workplace Fairness achieve. We will continue to work with you to ensure that workers have the information they need and a voice in the policies that affect them most.
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Friday, May 30, 2008
GINA isn't a new Workplace Fairness staff member, but the first piece of federal legislation protecting workers from discrimination that has come along in quite some time. GINA stands for the Genetic Information Nondiscrimination Act, which prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information, and also prohibits health insurers from restricting enrollment and premium adjustments for health insurance on the basis of genetic information or genetic services. Don't rush out to get those genetic tests just yet, however, as the employment section of the new law doesn't go into effect for 18 months, in order to give the Equal Employment Opportunity Commission time to implement regulations, and for employers to develop policies consistent with the new law.
It's hard to imagine a bill more bipartisan than GINA. The bill (HR 493) passed the Senate by a vote of 95-0 and the House by a margin of 414-1. (Who was that lone House dissenter? Republican presidential candidate Ron Paul, whose Congressional website claims that he "never votes for legislation unless the proposed measure is expressly authorized by the Constitution," and that according to former Treasury Secretary William Simon, he's the "one exception to the Gang of 535" on Capitol Hill." That was certainly the case this time.)
Obviously, with such widespread Congressional support, President Bush had no choice but to sign it, and he did so on May 21, 2008. (See Signing Statement.) In doing so, he noted the absence of Sen. Ted Kennedy, due to a recently diagnosed malignant brain tumor, who had been a driving force behind the bill's passage during the decade that it was under consideration. Kennedy's spokewoman noted, "Today, the President signed what Senator Kennedy calls the first civil rights law of the century of the life sciences." (See Kennedy statement.)
What does GINA do?
GINA prohibits employers from discriminating against their employees on the basis of genetic information (no matter how the information was acquired) in hiring, termination, compensation, and other personnel actions such as promotions, classifications and assignments. It also prohibits employers from requiring genetic testing and from purchasing or collecting genetic information, with a few limited exceptions, such as when it is required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.
GINA also prohibits disclosure of an employee's genetic information, except under the following circumstances:
As the primary House sponsor of the bill, Rep. Louise Slaughter, proclaimed, "Since no one is born with perfect genes, each one of us is a potential victim of genetic discrimination.” (See Slaughter statement.) This legislation will protect all of us, and luckily all of Congress and the President agreed. Now, if we just didn't have to wait 18 months for it to go in effect...but we've already waited over 10 years.
More Information:
Coalition for Genetic Fairness
Human Genome Project
National Human Genome Research Institute, National Institute of Health genetic discrimination page
It's hard to imagine a bill more bipartisan than GINA. The bill (HR 493) passed the Senate by a vote of 95-0 and the House by a margin of 414-1. (Who was that lone House dissenter? Republican presidential candidate Ron Paul, whose Congressional website claims that he "never votes for legislation unless the proposed measure is expressly authorized by the Constitution," and that according to former Treasury Secretary William Simon, he's the "one exception to the Gang of 535" on Capitol Hill." That was certainly the case this time.)
Obviously, with such widespread Congressional support, President Bush had no choice but to sign it, and he did so on May 21, 2008. (See Signing Statement.) In doing so, he noted the absence of Sen. Ted Kennedy, due to a recently diagnosed malignant brain tumor, who had been a driving force behind the bill's passage during the decade that it was under consideration. Kennedy's spokewoman noted, "Today, the President signed what Senator Kennedy calls the first civil rights law of the century of the life sciences." (See Kennedy statement.)
What does GINA do?
GINA prohibits employers from discriminating against their employees on the basis of genetic information (no matter how the information was acquired) in hiring, termination, compensation, and other personnel actions such as promotions, classifications and assignments. It also prohibits employers from requiring genetic testing and from purchasing or collecting genetic information, with a few limited exceptions, such as when it is required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.
GINA also prohibits disclosure of an employee's genetic information, except under the following circumstances:
- upon the employee's request,
- to an occupational or other health researcher,
- pursuant to a court order,
- to a government official investigating compliance with this law,
- in connection with the employee's compliance with the FMLA or state family and medical leave laws, or
- to a public health agency.
When genetic information is received by the employer, it is to be maintained confidentially and disclosed to the employee only.
The health insurance provisions of GINA go into effect in one year, as opposed to 18 months for the employment-related provisions. These provisions apply to group health plans, individual plans, and Medicare supplemental plans. GINA prohibits the use of genetic information in enrollment restrictions and premium adjustments and prohibits health plans and insurers from requesting or requiring genetic testing. However, GINA doesn't prevent genetic discrimination against people applying for life, disability, or long-term care insurance -- other forms of insurance where genetic information may adversely influence a patient's ability to obtain adequate insurance.
Why is GINA necessary?
According to the National Human Genome Research Institute,
Once GINA's protections kick in, in late 2009, employees will feel more confident about taking genetic tests that may help predict whether they will develop certain diseases without worrying whether doing so will make them unemployable and uninsurable. With more individuals taking genetic tests, scientists will have more data allowing them to make the tests even more reliable and useful. While the misuse of genetic information may not be widespread now, with very few cases in the states that currently have antidiscrimination protections, this bill is designed to prevent genetic discrimination from ever gaining a foothold in the workplace.While most Americans are optimistic about the use of genetic information to
improve health, many are concerned that genetic information may be used by
insurers to deny, limit or cancel health insurance, and by employers to
discriminate in the workplace. They are worried that some insurers may choose
not to insure people who are healthy but genetically pre-disposed to future
disease onset: such people incur more health-related costs for the insurance
company than individuals who are not predisposed. Similarly, they fear that some
employers might only employ or retain individuals who are not pre-disposed to
future disease onset, since healthy individuals are more productive.
As the primary House sponsor of the bill, Rep. Louise Slaughter, proclaimed, "Since no one is born with perfect genes, each one of us is a potential victim of genetic discrimination.” (See Slaughter statement.) This legislation will protect all of us, and luckily all of Congress and the President agreed. Now, if we just didn't have to wait 18 months for it to go in effect...but we've already waited over 10 years.
More Information:
Coalition for Genetic Fairness
Human Genome Project
National Human Genome Research Institute, National Institute of Health genetic discrimination page
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Wednesday, May 21, 2008
A recent article in the New York Times caught my eye: Doctors Say ‘I’m Sorry’ Before ‘See You in Court’. It really got me thinking about what would happen to the practice of employment litigation if employers would adopt the same practice. I suspect that it would dramatically cut the instances where employees would sue their employers if more employers could say "we're sorry," when an employee was mistreated. Will this trend take hold with employers the way it's starting to with doctors?
Humans make mistakes, and doctors are no exception. While mistakes can be harmless, they can also be a matter of life or death. The cost of malpractice insurance to cover mistakes has skyrocketed to the point that some doctors have chosen to leave the field altogether. Although there have been efforts to rein in malpractice suits in the name of "tort reform," such efforts essentially amount to blaming the victim, rather than addressing how it is appropriate to compensate those who have lost loved ones or incurred significant pain and distress for their injuries.
Although the rules of evidence in many states prohibit using an apology as an admission of guilt in a legal proceeding, apologies still happen relatively rarely. Once potential defendants in a lawsuit consult with a lawyer, chances are good that they will be told not to say anything about the circumstances of the incident, and especially not to apologize. As the Times article points out,
But according to this article, things may be changing. Some medical practices are experimenting with efforts to disclose medical errors more promptly, and to offer earnest apologies and fair compensation. And while their lawyers may have feared the worst, the sky has not fallen -- not even close.
Why such dramatic results? The lawyers involved with such cases understand that "what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again." This will sound familiar to many employment lawyers who represent employees as well.
Admittedly, employment law is different than medical malpractice. Rarely are the mistakes so cut-and-dried as ones where a doctor removes the wrong body part or sews up a patient after surgery with an object remaining inside. Medical malpractice doesn't involve the question of intent, which is an important element of many types of employment cases. However, any employment lawyer will tell you that there are a high percentage of cases that would settle without any litigation if the boss would just offer an apology and an assurance that what happened to the employee will not happen again to others.
A pro-apology policy doesn't mean an employer can't defend its position aggressively when it feels it has done nothing wrong. In Michigan, where the state hospital system has adopted a full disclosure policy,
A full disclosure and apology policy may be a way to separate the wheat from the chaff, and the very best kind of tort reform: one that actually works to fairly compensate injured plaintiffs and reduce the litigation costs for everyone involved. Now, if some employers and their lawyers would just adopt it as their official policy, we could see just how much those two simple words, "I'm sorry," mean to someone who has suffered a wrong.
Humans make mistakes, and doctors are no exception. While mistakes can be harmless, they can also be a matter of life or death. The cost of malpractice insurance to cover mistakes has skyrocketed to the point that some doctors have chosen to leave the field altogether. Although there have been efforts to rein in malpractice suits in the name of "tort reform," such efforts essentially amount to blaming the victim, rather than addressing how it is appropriate to compensate those who have lost loved ones or incurred significant pain and distress for their injuries.
Although the rules of evidence in many states prohibit using an apology as an admission of guilt in a legal proceeding, apologies still happen relatively rarely. Once potential defendants in a lawsuit consult with a lawyer, chances are good that they will be told not to say anything about the circumstances of the incident, and especially not to apologize. As the Times article points out,
For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.
But according to this article, things may be changing. Some medical practices are experimenting with efforts to disclose medical errors more promptly, and to offer earnest apologies and fair compensation. And while their lawyers may have feared the worst, the sky has not fallen -- not even close.
Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.One hospital among the first to experiment with a full disclosure policy reports a decline in existing claims and lawsuits from 262 in August 2001 to 83 in August 2007.
Why such dramatic results? The lawyers involved with such cases understand that "what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again." This will sound familiar to many employment lawyers who represent employees as well.
Admittedly, employment law is different than medical malpractice. Rarely are the mistakes so cut-and-dried as ones where a doctor removes the wrong body part or sews up a patient after surgery with an object remaining inside. Medical malpractice doesn't involve the question of intent, which is an important element of many types of employment cases. However, any employment lawyer will tell you that there are a high percentage of cases that would settle without any litigation if the boss would just offer an apology and an assurance that what happened to the employee will not happen again to others.
A pro-apology policy doesn't mean an employer can't defend its position aggressively when it feels it has done nothing wrong. In Michigan, where the state hospital system has adopted a full disclosure policy,
[T]rial lawyers have come to understand that [the hospital] will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate. "The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” said Norman D. Tucker, a trial lawyer in Southfield, Mich. “We might give cases a second look before filing because if it’s not going to settle quickly, tighten up your cinch. It’s probably going to be a long ride.”
A full disclosure and apology policy may be a way to separate the wheat from the chaff, and the very best kind of tort reform: one that actually works to fairly compensate injured plaintiffs and reduce the litigation costs for everyone involved. Now, if some employers and their lawyers would just adopt it as their official policy, we could see just how much those two simple words, "I'm sorry," mean to someone who has suffered a wrong.
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