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Signing a Card to Join a Group? What a Novel Idea.

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If you have any interest in politics you have heard by now the big news about Senator Arlen Specter switching his party affiliation from Republican to Democrat. From what I can gather, the actual process to switch parties merely requires some paperwork. That’s it!

Sen. Specter does not want to join the ranks of the 434,000 people unemployed in Pennsylvania and made a strategic decision to sign-up to be a Democrat. Now, as a new member of an affiliation working to protect his job, President Obama has pledged to campaign for him and the fundraising juggernaut, the Democratic Senatorial Campaign Committee (DSCC), already lists Specter as a Democrat to support in the 2010 political cycle.

In Senator Specter’s statement about switching parties, he noted his continued opposition to the Employee Free Choice Act. He stated,

“My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees Free Choice (Card Check) will not change.”

Despite Sen. Specter’s betrayal by flip flopping his position on the Employee Free Choice Act last month, leaders and spokespeople within the labor movement have expressed subdued exuberance at the prospect of Sen. Specter joining the ranks of the Democrats. Sen. Specter’s party switch may indicate a compromise for the Employee Free Choice Act, and therefore, with Sen. Specter’s support, the bill could be closer to achieving the 60 votes needed for cloture.

I do not carry the heavy burden of a leader representing millions of members, so I can afford to be more skeptical and indignant. But the fact remains that Sen. Specter stated just one month ago that he would not support the bill and, as noted above, made a point of reiterating his position in his statement about switching parties. This is after he was on record for years as supporting the bill. He supported it when it was only theoretical since it didn’t have the votes to pass with Republicans holding the majority in Congress and President Bush in office vowing to veto it if it should ever come across his desk. And as a supporter of the theoretical bill, Sen. Specter enjoyed a great deal of support from unions.

Now, in 2009, with a Democratic President and majority in Congress the theoretical bill has become very real. Now is the time a person’s word and support means something. And Sen. Specter changed his position. His reasoning? He claims he cannot support legislation that would make it easier for working people to gain the protection and support of an organization that will bargain for wages, benefits and terms of employment until, wait for it – the economy improves. Well, he has a point. In a time of economic uncertainty, rampant layoffs, corporations asking employees for major givebacks while its managers award themselves multi-million dollar bonuses and travel by corporate jet – that’s certainly no time for workers to have some semblance of checks and balances looking out for their best interests.

So the question begs to be asked: Senator Specter – You signed a form and now belong to a group that will fight for your job and will represent your interests exactly at the time you really needed it. Wouldn’t it be great if we could ALL have that option?


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Another Reason to Create a Winning Workplace: Less Litigation

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In recent posts on our blog I’ve mentioned the following as ROI for small organizations that define employee engagement, build and utilize practices to engage employees, and turn to manager team building to create a strong culture that trickles down from leadership:

But there’s another one that has perhaps a greater impact on the bottom line than any of the above: greatly decreased chance of a stakeholder (employee, supplier, customer) bringing forth a lawsuit against your business.

I was astounded to read on HR Daily Advisor recently that according to a survey by the law firm Fulbright & Jaworski L.L.P., close to 4 out of 5 companies experienced new litigation in 2008.  Compare that to cases you could count on one hand among the 70 companies that make up our Top Small Workplaces Winners and Finalists over the last two years.

And virtually all of those were due not to egregious behavior by the managers or the leadership (not as a result of a toxic company culture), but by natural oversights or miscalculations in contracts and other arrangements between employees and the company.  In addition, to my knowledge these cases were settled quickly and amicably.

So if you want your organization to fall among the 21% that are litigation free, your seemingly “soft” focus on fostering good team building can go a long way toward making that happen.

Your thoughts?

Cross-posted from the Winning Workplaces blog.

About the Author: Mark Harbeke is Director of Content Development for Winning Workplaces.  Mark’s role is to ensure that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University.Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.


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Women of the World Unite, All We Have to Win Is 22 cents

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Today is Pay Equity Day. The National Committee on Pay Equity came up with the idea in the mid-1990s to acknowledge a day in April to remind us that it takes women a full year PLUS an extra four months of earning a salary (or a total of 16 months) to equal the amount male colleagues net in just one calendar year (12 months). That is what it means when you hear the statistic that women who work full time earn about 78 cents for every dollar men earn (See U.S. Census Bureau and the Bureau of Labor Statistics). Minority women are subject to a far greater wage gap.

Not mad yet? Those twenty-two cents add up. The Center for American Progress reports that women who work year-round earn less than men in comparable jobs and at all educational levels. The wage gap increases over a woman’s lifetime and adds up to $434,000 over a 40-year career for the typical woman. A woman with a bachelor’s degree or higher can lose more than $713,000 (See Center for American Progress, “Wage Gap by the Numbers“).

“Well,” you’re thinking, “that sounds pretty bad, but this is someone else’s problem; surely I am not being paid less than my male colleagues!” Think again. The statistics say otherwise. The gender wage gap is documented in all 50 states and is at a national average rate of 78 percent (Source: National Women’s Law Center‘s calculations from the U.S. Census Bureau, Income, Earnings and Poverty Data from the 2007 American Community Survey (August 2008). You do the math – chances are, if you are a woman in the workforce, it is highly likely that you are earning less than had you been a man.

If you are a man reading this, then it should trouble you that the gender wage gap is harming your wife, sister, mother, daughter, friends and colleagues. According to the AFL-CIO, working families lose $200 BILLION every year due to the wage gap! Your women are bringing home less bacon than they should be, and it is affecting everyone’s bottom line.

Or think of it another way: the current recession is especially hitting male-dominated industries, such as construction and manufacturing. Four out of every five jobs being lost in this recession affect men. Women are becoming the main breadwinner, but, on average, make up only one-third of a family’s income. Prolonged, systemic pay inequity will further hurt families who have lost the earnings of the male breadwinner and must solely depend on the woman’s wages, to say nothing of single mothers who struggle year in and year out independent of economic downturns.

In honor of Pay Equity Day, it is reasonable and even encouraged to express your well-earned outrage. There are a number of legislative efforts seeking to close the wage gaps between men and women, and minorities as well. A number of organizations’ web sites today will detail current and soon-to-be-introduced legislation to close loopholes, enhance provisions under the Equal Pay Act, and prohibit employer retaliation against workers who inquire about employers’ wage practices. I encourage you watch one of the more amusing Equal Pay legislation videos out from the Center for American Progress. Check out EQUAL PAY: Batgirl vs Chamber of Commerce.

Fixing this issue legislatively is one important approach, but cannot be achieved exclusively in this manner. If you have any doubts, consider that it was President Kennedy who signed the Equal Pay Act into law more than forty-five years ago. If Kennedy’s challenge to land a man on the moon were as successful as the Equal Pay Act, Neil Armstrong’s ‘giant leap for mankind’ would have been referring to a cool telescope.

The most direct, proven tool to combat pay inequity are unions. According to AFL-CIO compiled data from the Bureau of Labor Statistics for 2008, on average, unionization raised women’s wages by 32% compared to non-union women. A study by the Center for Economic and Policy Research found that for the years 2004 – 2007, unionized women were much more likely to have health insurance (75.4%) and a pension (75.8%) than women workers who were not in unions (50.9% for health insurance, 43% for pensions.) In real dollar terms – the average unionized woman working full-time earns a weekly salary of $809 per week vs. the $615 a non-unionized woman will earn.

The same business groups, such as the Chamber of Commerce, who fought against the Ledbetter Fair Pay Act, which restores the right of victims of pay discrimination on the basis of sex, race, national origin, age, religion and disability to challenge the discrimination in court, are the same groups waging war against the Employee Free Choice Act – the bill that will give workers the freedom to choose a union to represent them. The more women unionize, the more they rightfully earn and the narrower the wage gap becomes.

Help pass the Employee Free Choice Act, and soon we might be celebrating Pay Equity Day when it should be celebrated – in December.

About the Author: Eileen Toback is a political strategist and labor relations expert. To read more of Eileen’s commentary on labor issues, check out unionmaiden.wordpress.com. If you have a question for Eileen, contact her via eileentoback@gmail.com.


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Is It a Job Hunt or A Spam Campaign?

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This just in: we don’t like spam. Big surprise, I know.  In fact, 59 percent of the respondents to a Workplace911 online ballot reported that they hate marketing (a.k.a. spam) on the Internet .

I think it’s a given that most people don’t even glance at spam before deleting it. But are there times when this accepted practice can come back to bite us? What if it’s an e-mail you sent that’s being classified as spam? And what if, heaven forbid, it’s a potential employer trashing your resume as spam? Well, maybe — probably, actually — it’s a sign that your  approach to the job search could stand to be tweaked.

The Daily Show had a great interview with an Internet marketer who boasted how he was providing a service to people by marketing products and services on the web. However the marketer’s tone changed when he was asked about people who flood him with emails to protest his marketing efforts. Without a shred of irony, Mr. Spam said how much he personally hates unsolicited emails.

All of this leads to a remarkable discovery that I made two weeks ago. I was sending email and my email program crashed just after I hit sent. I got a message saying that my email may not have reached its intended destination. Because this was an important communiqué, I resent it and added my name to the CC line so I could see if it actually arrived this time.

You probably see where this is headed. I didn’t get the email for two days. Suddenly it dawned on me to look in my spam folder. Yep, you guessed it correctly; my computer determined that  an email  sent  from the person who bought the virus protection program in the first place  — me —  was spam.  Yep, I inadvertently spammed myself. Pretty funny, but it got me thinking about the possible consequences of unintentionally sending spam.

We are all fond of pointing to others about the spam problem that we face. But as my mom used to say, whenever you point a finger at someone else, four fingers point back at you (actually for total accuracy, only three really point back at you, that darn thumb tends to point wherever it is in the mood to point).

Unfortunately most job hunters are spammers at heart. I can’t tell you how many people have written to me through the years to say that they’ve sent out 100 resumes, 500 resumes, even 1,000 resumes. Is this really a job hunt or is this simply spam in a different form ? The reality is, most of these e-mails are probably classified as spam whether they were intended as such or not.

Job hunts should be targeted. Job hunts should be tailored. Job hunts should be rifle shots rather than shot gun blasts.

How can you turn away from spam in your next job hunt? Start by looking in the mirror. Ask hard questions of yourself and what you want to be when you grow up. Next identify a short list of companies that you’d actually want to work for. Keep the list short enough that you’ll have the time to do homework on each one.

How do you escape the trap of sending out spammish emails in a job hunt? By using your network to make personal contacts inside the organizations that you want to work for. So your phone calls or emails are greeted with open arms rather than as a pain. Don’t believe me? Think about the last time someone contacted you who you had never heard of. How excited were you to talk to them. Now think of a time someone called you referred to you by a dear friend. Case closed.

Reverend Ike was one of my favorite spiritual leaders. One of my favorite quotes of his was, “The best way to help the poor is not to be one.” And when it comes to job hunts and spam, the best way to help get a job is to renounce spam and create a job hunt that is targeted and focused.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.


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Are Fox and American Idol Guilty of Age Discrimination?

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It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain’s Got Talent. The New York Times and CBS News have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the “not so young and not so beautiful” that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page — a statement that elicits great hilarity and hyperactive camera close-ups of the judges’ bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, “I Dreamed a Dream” from Les Miserables.

“How old are you, Susan?” asks Simon, in a tone more appropriate to an interview with a toddler.

“Forty-seven,” she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can’t remember the word “villages,” and to top it off, Omigod, she’s old! Either she’s a ringer and we’re in for some weird parody of Dame Edna or we’re about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she’s sung three glorious, crystal clear notes, the audience is cheering, the judges’ jaws have dropped, and I’m choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here’s what struck me when I first saw the story: How come she gets to try out  and she’s 47? Not so in the U.S.A.

While most people may not have given it much thought, it’s pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it’s no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol — not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can’t try out

Why not?  I said.

Because he’s not under 30.

Yes, that’s right.  In order  to try out for American Idol you have to be under thirty years of age.  I checked the rules and here’s what I found:

You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It’s not a real simple answer.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to:

  • all employees and job applicants.
  • all terms and  conditions of employment including: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is crystal clear that an employer can not lawfully have a rule which prohibits it from employing anyone over the age of 30.

There are times when employers can lawfully use age in making employment decisions.  For example,commercial airline pilots are required to retire at a certain age. It’s simply not safe to have 80 year old pilots flying commercial jet planes with hundreds of  lives at risk.

For that logical reason, the Age Discrimination in Employment Act permits exceptions for:

a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business

That provision, commonly called the “BFOQ” exception, allows airlines as well as other industries (where safety, for example, may be an issue) to require retirement at a designated age.

But singing?  What could possibly be the bona fide occupational justification for statinging that an excellent singer has to be under 30?  Paul McCartney and Barbara Streisand still sound just fine. In fact, it seems to me that many singers get better with age.

The problem with this scenario is that the Age Discrimination in Employment Act prohibits age discrimination in employment and folks on American Idol are not applying for jobs, so the the act arguably does not apply.

I am not, however, completely convinced that’s the end of the story and this is why.

American Idol is broadcast by Fox. Fox Broadcasting Company is a network that is heavily regulated by the federal government.

In fact , Fox is licensed by the Federal Communications Commission to do business and is subject to the Cable Television Consumer Protection and Competition Act of 1992 as well as a host of other federal laws.Television networks have all sorts of civil rights compliance requirements and regulations which prohibit discrimination.

While I understand that this is not a case of discrimination in employment, it certainly seems to me that it may be a case of discrimination in the award of a contract.

This is my argument:

  • when you win American Idol you get a recording contract
  • the contract is offered on to those under 30
  • Fox Broadcasting, through American Idol, is committing age discrimination in the award of contracts by not allowing those over 30 to compete.

I am not entirely sure whether the argument is constitutionally sound, but I am not convinced that it’s not.

As a constitutional matter, if a governmental entity awarded contracts to whites only,  we would no doubt be outraged. The government would have the impossible burden of showing that it had a “compelling governmental purpose” for doing so and the alleged justification would be given “strict scrutiny”. In other words, we would have little trouble proving that the contract is unconstitutional and illegal.

But even at the lower level of constitutional scrutiny used in cases of gender or age discrimination, how could  a contract awarded only to singers under the age of 30 be “rationally related to any legitimate governmental purpose” ? ( if Fox is considered to be taking governmental action because of it’s federal license or because it is heavily regulated by the federal government a constitutional analysis could kick in)

Yes, it’s all quite complicated.  Constitutional law is not easy. But it’s not hard to ask this question: If American Idol only permitted white individuals to audition, or permitted only men to try out, how would we feel about it and what would we do?

Putting all of the legal complexities aside, from one Simon to another, I feel compelled to ask: why can’t the show let everyone try out  to be the next American Idol?

Equal opportunity in England, but not the United States, just doesn’t seem right.

image: weblogs.newsday.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.


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Your Workplace: Puzzle or Mystery?

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Is the challenge you’re currently facing at work a puzzle or mystery? Think about it.

When asked myself this question, I decided this was the most provocative insight I’d heard in a very long time. A distinction that can have a profound impact on how you approach your job and the results that you can expect from it. Unfortunately, most of us fail make this distinction.

First, let me give props to the person who introduced this unique way of addressing challenges, Malcolm Gladwell. In turn, he credits national security expert, Gregory Treverton.

In short, a puzzle can be figured out if you just assemble enough pieces. A mystery lacks “pieces” and it involves a totally different thought process to address.

First, let me give a non-workplace example of each. A puzzle would be trying to find Osama bin Laden. His location could be determined if we only had enough clues. On the other hand, what would happen once the U.S. invaded Iraq is more of a mystery. That outcome was more about guessing than piecing together a puzzle.

The key to me, is that a puzzle is mostly about the left side of your brain. It’s a logical process of collecting data. Get enough data points and you’ll be home free. On the other hand, solutions to a mystery live on the right side of your brain. The artistic, creative and non-logical side. Solving a mystery usually takes leaps of faith and judgment.

Hopefully by now you see the distinction between these two ideas. But what the heck does this have to do with work? Plenty.

Take a poor performing employee. Often we view this as a mystery. They’re getting paid, so it’s a mystery as to why they aren’t performing. To me this is a classic case of a puzzle. Often, when you dig deeper you can see why an employee is not performing. Maybe it’s because they are having problems at home. Maybe they are in the wrong job. Or maybe it’s their manager who is setting them up to fail.

Now let’s take a problem that most of us would see as a puzzle, our customers. If we only have enough focus groups and data we could predict how our customers will react in almost any situation. In fact, economics has a huge number of formulas and ratios that “explain” exactly why we all behave the way we do. There is only one problem, most consumers that I’ve met are anything but rational. We make decisions on whims, poor data and impulse. Calling customers rational might be the biggest oxymoronic statement in business.

Each of us was born with two sides of our brains. Yet, many us tend to use only one side at work. The best part of the puzzle vs. mystery framework is that it forces us to think about the challenge we’re facing and to apply all of our firepower to solving it. So take a hard look at your next challenge and decide whether it is a puzzle or a mystery. And then, and this is the important part, assign it to the correct part of your brain to tackle.

QUOTE:

“It’s not what you are that holds you back, it’s what you think you are not.” —Denis Waitley

About the Author: Bob Rosner is a best-selling author, award-winning journalist and contributor to On The Money. He has been called “Dilbert with a solution.” Check out the free resources available at workplace911.com. You can contact Bob via bob@workplace911.com.


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Sicko

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Here is an admission that I’ve never made in the decade that I’ve been writing professionally—I cried watching a DVD this weekend. It wasn’t a chick flick. Or a horror movie. Well maybe not a traditional horror movie, but it was still mighty scary.

The movie was “Sicko.” Yep, that crazy Michael Moore’s movie that is unfortunately as relevant as when it first came out. Maybe more so. What does this have to do with a workplace blog? Since most of us get our health insurance from the same place—our job—Sicko has everything to do with work.

Our jobs and health insurance have been inextricably bound together since the late 1940’s. With a flood of soldiers coming back after WWII, corporations positioned health insurance as a perk to attract the best and brightest. Ironically, the movie documents how England went in the exact opposite direction by introducing universal health care right after the war.

I never thought I’d encourage you to go see a movie that promotes a government run health care system, but then again I never thought I’d admit to crying in a movie either.

The movie contains heart breaking scene after scene of people without health insurance literally being tossed on the street in hospital gowns. But the most painful part of the movie weren’t stories from the uninsured. No, the worst parts of the movie are the scenes with people who have health insurance but who are denied treatment. Which raises the question, what is a safety net when it is full of holes. Holes that are big enough for you and me to fall through.

I have another personal confession to make. I once worked for a health insurance company. I saw how claims were reviewed. I didn’t see any cases of people who died for lack of treatment, but I did see a process that was more concerned about cost savings than providing quality health care.

I wish I could offer a silver bullet based on my experience. A way to ensure that you or a loved one will get the treatment you deserve, heck that you paid for. But the system is built so that the maximum decision making power doesn’t lie in the hands of your doctor, but in the bowels of health insurance behemoths.

But rather than demonizing health care workers, the movie interestingly shows how debilitating the system is on them. After all, these are the white-hated Florence Nightingales who got into health care to help people. They didn’t choose this career simply to write “denied” at the bottom of health insurance forms.

Moore contrasts interviews with U.S. health care workers talking about how they hate having to deny treatment to people who need it with health care workers from countries with national health insurance who revel in their ability to simply focus on the needs of their patients rather than billing and access to service quandaries.

Is this movie above reproach? Of course not, after all this is Michael Moore. He falls too much in love with France’s socialized health care system, to just give one example. But don’t lose the bigger point, we are all betting our lives on a house of cards that spends millions to think of creative ways to deny treatment.

But don’t take my word for it. Watch this DVD and then speak up to Congress about a more fair system. Just don’t forget to bring Kleenex, because it could be the scariest ride you take all year.

About the Author: Bob Rosner isa best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.


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California’s Salaried Workers Score a Victory

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On Thursday, March 19, 2009, the Ninth Circuit Court of Appeals reversed a District Court’s order and reinstated a class action lawsuit against FedEx Kinko’s Office and Print (“FedEx”) seeking unpaid overtime and related penalties on behalf of a class of hundreds of the company’s Center Managers. This short three page decision carries monumental implications which extend far beyond the class members of this single action to reinforce the rights of all California employees who are paid on a “salaried” basis and denied compensation for their overtime work.

The case filed in May 2005 alleged that Center Managers at FedEx’s California Stores were improperly classified as “exempt” from overtime pay under California law on the basis that these employees met what is commonly referred to as the “managerial” exemption. Under California law, exemptions from overtime pay are narrowly construed and the employer has the burden to prove the exemption applies. For the managerial exemption to apply, the employer must prove, among other things, that the employees spend more than one-half of their work time on exempt duties and “customarily and regularly” exercise discretion and independent judgment under Cal. Labor Code § 515.

The case was certified as a class action in 2006. In May 2007, FedEx moved for summary judgment asking the District Court to conclude that the entire class was exempt from overtime under California’s “executive” exemption. The District Court agreed and granted Defendant’s motion. The Plaintiff appealed to the Ninth Circuit seeking to have that decision overturned.

The Ninth Circuit reversed the District Court’s decision holding that the class members testimony and expert witnesses raised triable issues regarding whether the Center Managers were primarily engaged in management duties. The decision is important as it reinforces the heavy burden employers must meet in order to show that their employees are spending at least half of their time on exempt tasks – merely referring to those employees as “managers” is not enough.

By reversing the District Court’s finding for FedEx, the Ninth Circuit sent a clear message of the Court’s intention to require employers who seek to circumvent overtime laws by paying their employees fixed salaries to provide substantial evidence to support these decisions – rather than merely referring to thoseemployees as “managers”. The fact that the decision was issued a mere eight days after the hearing is somewhat unusual and bodes well for the rights of all salaried employees throughout the state.

In light of the ruling, the parties will be proceeding toward trial. If successful there, hundreds of FedEx Center Managers could recover compensation for years of lost wages. Employees with similar claims would be well advised to strike while the iron is hot in seeking to recover owed wages pursuant to this ruling. If you are currently working in the state of California and are not receiving overtime pay (or if you are an attorney currently representing such an employee), please visit the Scott Cole & Associates, APC website to obtain further information regarding this lawsuit.

About the Author: Matthew R. Bainer, Esq. is an experienced and successful advocate of employees’ rights and has successfully represented tens of thousands of employees, both in California and throughout the nation. Mr. Bainer, a well-respected practitioner in his field, has written for both legal periodicals and academic law reviews. For more information about Mr. Bainer and his firm, please visit the Scott Cole & Associates, APC website at www.scalaw.com.


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Supreme Court Hears “Mixed-Motive” Age Discrimination Case

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Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it’s almost impossible.

The questions presented are:

  1. In a “mixed-motive” age discrimination case — where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
  2. What kind of evidence needs to be presented — direct or circumstantial — to prove a “mixed-motive” case?
  3. Does the discriminatory reason need to be a “substantial reason” or “a motivating reason” for the employee to prevail?
  4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. (“CRA”); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it  may have discriminated,  it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it’s fractured decision,  the Supreme Court came up with a new way of proving discrimination in what it called a “mixed-motive” case.  Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse when it enacted the Civil Rights Act of 1991.  In so doing, it specifically lowered the standards for employees in “mixed-motive” cases.  Theoretically, the CRA  makes it easier for employees to win these cases.  Under the Act:

  • the employer is not absolved of liability in “mixed-motive cases” even if it proves it would have made the same decision anyway, but damages to the employee are restricted.
  • in  order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must “demonstrate” that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation.

The issue of what kind of evidence was required was decided by the Supreme Court inDesert Palace, Inc. v.Costa in 2003. According to that decision, Congress intended the term “demonstrate” to mean that an employee could prove his or her case bydirect or circumstantial evidence. As the Court stated:

Title VII’s silence with respect to the type of evidence required in mixed-motive cases . . . suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” … That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” . . . by using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983).

You would think that would settle it but there’s always a wrinkle, and the wrinkle for Mr. Gross is that  the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross’ case.

Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court.

Gross’ argument is that there would be no reason not to interpret the ADEA  consistently with Title VII and no reason not to do so in this case.  That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters)

If anyone wants more, better, or different analysis of  the Gross case,  there are lots good pieces on it (SCOTUSBLOG, Ross Runkel’s Law Memo are two)

Whatever the outcome, as a practical matter I don’t think it will change the way employees and their lawyers go about proving age discrimination cases:

  • Plaintiffs are going to present all the evidence they have whether it’s direct or circumstantial, or both.
  • Most of us who represent employees have never seen the benefit of getting a “mixed motive” instruction even when we have direct evidence of discrimination because it’s too confusing to the jury.
  • It’s just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one.  Other than that, it’s not very interesting at all, but since it’s not often that an age discrimination cases hit the Supreme Court, it’s got to be talked about even though I am the first to admit –it’s mostly academic.

Image: www.visitingdc.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.



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