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Labor and Employment Insights
Winter/Spring 2001
Articles:
WORKPLACE VIOLENCE: Separating Snake Oil from the Stuff That Works.
Robin E. Shea, Winston-Salem Office
The holiday tragedy at Edgewater Technology in Wakefield, Massachusetts, in which Michael McDermott, apparently distraught over an IRS garnishment that would reduce his take-home pay to $300 a week, shot and killed seven co-workers, has prompted a flurry of dubious recommendations from experts on workplace violence.
One source, with piercing 20-20 hindsight, said that McDermott "clearly" fit the "profile" of an office killer: white male, middle-aged, with access to weapons. Him and about 50 million other white male 40-something gun-owners.
Another source quoted psychologists who claim to have created a test that "screens" potentially violent employees. For example, they suggest, an "aggressive" personality will say that American cars were built shoddily in the 1970s so that American companies could sell more replacement parts. Some of us middle-agers were actually taught that in high school during the Naderite '70s (our teachers called it "planned obsolescence"). Thus, holding this belief hardly seems evidence of a potentially violent personality.
Plenty of other experts say that such tests are notoriously unreliable predictors of violent behavior. For example, Jack Levin of Northeastern University's Brudnick Center on Violence, quoted in the Boston Herald after the Wakefield killings, says that these tests result in far too many false positives. "There are plenty of people in society who share many of these traits," he said, "but they don't go and kill anyone... If we really wanted to stop this violence, we'd have to make armed camps out of our offices."
This is the truly frightening aspect of the Wakefield shootings.
Another frightening aspect is trying to prevent violence with the many legal obstacles that block employers' way. The Americans with Disabilities Act ("ADA") severely restricts employers' ability to deal with employees whose inappropriate behavior is caused by mental illnesses. Although substance abuse is implicated in many violent workplace incidents, federal and state laws restrict employers' ability to test for drugs and alcohol. Questions about applicants' arrest records may violate federal and state laws prohibiting race discrimination, on the ground that African-Americans and Hispanics are disproportionately (and arguably discriminatorily) arrested.
So, is there anything a diligent employer can do to minimize its risk of violent incidents without trampling on its employees' expectations of privacy or violating one of the many legal restrictions that apply? Although none of the following may have prevented the Wakefield killings, we do strongly recommend that you take these steps:
- Do what you can, within the catch-22 created by the ADA, to screen out potentially violent individuals at the application stage. Although you may not be allowed to ask about mental illness, you may certainly ask about prior convictions for violent crimes. ("Violent crime" includes not only murder, armed robbery, rape, or assault with a deadly weapon, but also unarmed assault and battery, and spousal abuse. Suicide attempts are also associated with violence against others.) Experts say that a history of violent activity is the best predictor of future violent activity. Take a "zero-tolerance" approach to hiring individuals with histories of violence.
- With extreme care and with legal assistance, use the post-offer medical examination allowed by the ADA to identify offerees with mental illnesses that might result in violent behavior. (Keep in mind, however, that the vast majority of offerees with mental illnesses are law-abiding citizens and entitled to earn a livelihood.)
- Drug and alcohol test, to the extent authorized by federal law and the law of your state. Strictly enforce your rules against possession, sale, or exchange of illegal drugs or alcohol during work time and on work premises.
- Strictly prohibit the presence of weapons in your workplace.
- Take "bullying" behavior seriously; ditto for "scapegoating." Many violent employees fit into one of these two categories.
- Take all verbal or behavioral threats seriously. Make sure your applicable disciplinary policies state that threats are ground for immediate termination.
- This should go without saying, but just in case– terminate employees who engage in any type of physical altercation. Make no exceptions unless your investigation reveals that the employee was an innocent victim of someone else's rage or, possibly, that the employee acted in necessary and proportionate self-defense.
- Foster a democratic work environment and, to the extent possible, an atmosphere of caring. This could prevent an employee from "going over the edge." It is also believed that violent incidents are less likely to occur where employees have the opportunity to "gripe" and "vent" on a regular basis.
- Have an employee assistance program ("EAP"), and use it. Even if you have to terminate an employee because of violent or threatening behavior, consider letting him or her continue to use the EAP at company expense. Although this may cost your company some money, it could avert much more dire costs.
- Have a violence management program in place, and make sure that members of management know how to use it.
Again, it is far from clear that the seven Edgewater employees would have been saved by any of this. McDermott had no obvious history that would have disqualified him from employment and no incidents at work until the day of the shootings. However, not all workplace incidents are as unpredictable as this one appears to have been.
If you need assistance in developing a workplace violence prevention program that complies with the many laws affecting this area, please do not hesitate to contact your Constangy attorney.
Robin Shea practices in the areas of employment litigation, prevention, and OFCCP compliance.
Organizing Issues in the Health Care Industry:
FIGHTING OFF THE UNION "INFECTION"
Unionizing in the health care industry is an increasing concern. In the spirit of the current flu season, this is the third and final installment of a series by Kimberly Seten from Constangy's office in Kansas City.
As unions have lost influence in the industrial sector, they have looked to the health care industry. Many health care employers, not accustomed to organizing campaigns, end up being easy targets because of their lack of preparedness and experience. Often, health care employers do not know they are being targeted until it is too late. As a result, health care organizing has reached epidemic proportions: the number of union representation elections in the industry has doubled in the last year, and in 1999, unions won approximately 64 percent of the time. The Service Employees International Union, with its National Nurse Alliance program, is winning more than 75 percent of its health care elections. The average spread between votes for and against the union was seven percent.
Health care employers need to take all possible steps to ward off this "organizing epidemic." As with fighting off an infection, the best defense is to be healthy before that bacteria makes its way into your system. Second best is to get prompt attention once you realize you may have a problem. The worst thing you can do is ignore the infection and hope for it to go away on its own. By the time you realize it won't, you may very well be in critical condition.
The Best Medicine
In the health care industry and elsewhere, the best medicine is a management team that has always been fair, as democratic and flexible as possible, and responsive to employee concerns. A longstanding healthy relationship between employees and their supervisors is equivalent to a patient who has good genes, and who eats nutritious foods, exercises, avoids unhealthy habits, and gets regular checkups. Any disease seeking a host in such a patient will probably be defeated before it begins. Similarly, a union campaign will normally have a tough time getting a toehold in a harmonious, even-handed workplace.
All Right, But What About the Rest of Us?
Of course, workplaces in the real world are often like real patients. Although there are a handful who will do everything right, the rest of us have a few faults: we can't resist that glass of scotch, we enjoy rich foods too much, we are afraid of doctors, or our ancestors passed along to us the genes for high blood pressure, heart disease, and cancer. When a disease comes looking for us, we may be a little more vulnerable. We may actually require prescription drugs or surgery.
It is helpful to think of a union organizing campaign as an infection that spends some time in your body before you feel the first symptom. Often, a union has been present, meeting with employees and soliciting signatures, for more than a year before the employer ever knows what hit it. The first step the union infection takes is to develop leads among the employees, usually through union members who have relationships with employees at the "host" organization. If an employee complains about working conditions to a friend or relative who is a union member, the union member can pass the information along to an organizer.
Just as the infection "prefers" the unhealthy person, the union organizer prefers an unhealthy facility. Accordingly, the organizer will assess the general "health" of the targeted facility, including the facility's overall labor relations history; whether related facilities are organized; whether there are strong emotional issues at the facility that the union can use to its advantage; and whether the facility is worth the union's time and money. This is obviously a critical point in the organizing process: if the facility's "health" is good, chances are that the union will move on and choose a more accommodating victim. On the other hand, if the facility is "sickly," then the union will probably consider itself to have found a good host and will settle in.
Why are health care employers vulnerable to organizing campaigns? For nurses, we often see most of the issues boil down into one: a perceived lack of respect for them as professionals. Many nurses believe that physicians treat them as second-class citizens. They perceive that hospital administrators back the doctors and are more concerned about saving money than ensuring top-quality patient care. It is not uncommon for hospitals to have a ratio of one registered nurse to every fifteen patients, with the remainder of the patient-care staff consisting of licensed practical nurses and aides. To many registered nurses, this is a slap in the face to them and also a guarantee of inferior care to the patients. Often, labor and delivery nurses are sent home without pay on "slow" days, a pocketbook issue that also implies a lack of respect.
If the organizer decides that the facility is worth organizing, the union will then begin to recruit organizers from within. This is analogous to the way that an infection proliferates within the host's body. The organizer will try to recruit at least one individual from each work area of the hospital to join the organizing committee. The organizer will train the committee members to recruit and solicit other co-workers. Nurses who are responsible for intravenous care are ideal candidates to be union organizers for the same reason that frequent travellers are effective at transmitting disease: they often circulate to a variety of areas within the hospital. Other good candidates are employees in the business office: they can provide the union with a list of names and addresses of potential members of the bargaining unit.
Once the internal organizing committee is assembled and trained, the committee will surface and begin publicly speaking to other employees. This is equivalent to the patient's experiencing its first cough or sneeze. The worst thing that the patient can do at this point is ignore the symptoms in the hope that the disease will go away on its own. The patient must begin taking the antibiotics that will kill the bacteria: if the employer has not already done so, it should train supervisors so that they can listen to and evaluate employees' concerns. The employer should also begin its own communication campaign immediately if not sooner.
A good infection can adapt itself so that the host organism's defenses lose their effectiveness. Similarly, the union will try to predict the employer's message, using material from other employers during other campaigns, to make this employer's message seem contrived and insincere. The union will also try to preempt the employer's issues: for example, if the union believes the employer will make an issue of the union's indifference toward patient care, the organizer's campaign will focus on patient care.
Unions can be as resourceful as bacteria and viruses in ensuring their survival. Common health-care organizing tactics include soliciting the support of physicians; appealing to religious hospitals' sense of social justice to take neutral positions on organizing; filing complaints with health departments and other agencies; and threatening to encourage other unions not to sign hospital-managed care contracts unless the hospital negotiates with the union.
Have You Had a "Check-Up" Lately?
Events move quickly once a union organizing committee surfaces. If your facility's health is not ideal, now is the time - before you become aware of a campaign - to get a "check-up" and to address any unhealthy conditions you might have. As stated above, your best defense will be an employee relations policy that proactively identifies and deals with employee concerns. At the very least, you will need a union avoidance strategy that you can immediately put into action once you sense that organizing activity is taking place.
From the Editor's Desk
YES, IT'S CONSTANGY–REALLY!
I hope you like the makeover that has taken effect with this quarter's edition of the Constangy newsletter. (I also hope you recognized us and didn't pitch us in the trash!)
Henceforth, Constangy's family of newsletters– Executive Labor Summary, The ERISA Strategist, Court Watch, Client Bulletin, and our OSHA publication–are going to have a uniform "look" and masthead. You'll be able to tell us apart by the color of our respective mastheads.
This is the "flagship" publication (official color: blue), and we now have a name: Labor and Employment Insights.
With this issue, we will begin two additional new features: "Quarterly Pulse," a "graphic" that will show a random-yet-interesting statistic in the labor and employment arena, and "Getting to Know Us," a regular column that highlights some of our attorneys so that you will– uh–get to know us. We will continue our "Quarterly Quiz," "Reason Prevails . . . Flails," "Check Us Out," and "Kudos" features, as well as our three to four analysis pieces each issue.
I hope you will enjoy the new format as well as the new content. As always, we love to get your feedback. If you have any comments–good, bad, or ugly–please contact me through the means listed to the left.
Robin E. Shea
Editor
We'd love to hear your feedback. If you have any comments or suggestions, please feel free to contact Robin Shea at our Winston-Salem office.
rshea@constangy.com ph) 336-721-1001 fx) 336-748-9112
KUDOS
Mel Haas (Macon Office) has been named Chairperson for the Employment Law Committee of the Georgia Defense
Lawyers Association.
David Ware (Atlanta Office) was selected to help design an exam for aspiring sports agents on the NFL's collective bargaining agreement. Only six of 1500 attorneys were selected.
Congratulations to Mel and David!
QUARTERLY QUIZ
Your Company, which has more than 50 employees, has a sales representative based in Outerville. The representative spends her work time on sales calls and then does her paperwork from a home office. When she gets pregnant, she asks to take 12 weeks off under the Family and Medical Leave Act ("FMLA"). The VP of Sales believes the rep is not entitled to FMLA leave because she is the only employee of Your Company working within a 75-mile radius of Outerville. Is the VP correct?
Getting To Know Us
Jim Smith (Atlanta Office, traditional labor and employment law, especially focused on union-related issues in the transportation and textile and apparel industries) is presently the most senior member of the firm. His undergraduate and law degrees are from the University of North Carolina at Chapel Hill. Jim was the first Management Chairman of the Equal Employment Opportunity Committee of the American Bar Association's Labor and Employment Section and also led the first Occupational Safety and Health Committee as chairman of the Section's Fair Labor Standards Committee. Before he began practicing law, Jim was a counter-intelligence officer in the U.S. Army. He is a history buff (especially the Civil War) and is widely travelled. He also enjoys gardening and fishing. Jim and his wife, Jean, have four children and eight grandchildren with number nine on the way.
Randy Loftis (Winston-Salem Office, employment litigation prevention and defense) is head of Constangy's Winston-Salem office. He is a graduate of Wofford College and graduated cum laude from Wake Forest University School of Law, where he was Comments Editor of the Law Review. He has been Chairman of the Labor and Employment Section of the North Carolina Bar Association and has been listed since 1989 in Best Lawyers in America. He is a retired marathon runner, having participated in several such events during the 1980s, and an avid hunter. Randy and his wife, Lea, have four children and two grandchildren.
Dana Thrasher (Birmingham Office, employee benefits) is a summa cum laude graduate of the University of North Alabama and Cumberland School of Law (yes, both degrees are summas!). She currently serves as an Alabama attorney liasion to the IRS Employee Benefits Committee. Her hobbies include travelling, swimming, and spending time with her family. Dana is also active in community service; however, when asked whether there were any interesting facts about herself, she said, "Is this a joke? I'm an ERISA lawyer." Dana and her husband, David, have three children.
Cara Crotty (Columbia Office, employment litigation prevention and defense) has a bachelor's in psychology from the University of Virginia and a law degree from the University of South Carolina, where she was a member of several honors organizations and taught legal writing. Cara's writings have appeared in numerous legal publications. Cara is a newlywed: in May 2000, she married Brian Crotty, also an attorney who practices in the area of commercial litigation.
Matt Effland (Tampa office, employment litigation prevention and defense, and wage-hour) has a bachelor's in both economics and history from Cornell College and a cum laude degree from Texas Tech University School of Law. When he was nine years old, Matt watched his grandfather win a trial in Illinois, and knew right then that he wanted to practice law. His current hobbies include golf, the study of medieval history, and book collecting. Matt's wife, Vicki, has a Ph.D. in psychology and works as a research consultant.
AFFIRMATIVE ACTION: Will Bush De-Fang the 0FCCP?
Mandi Smith T, Birmingham Office
During President Clinton's eight years in office, we witnessed an increased vigor on the part of the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"). The OFCCP recovered record-breaking settlements during compliance audits and has topped a million dollars in a number of cases, including $4.5 million from Boeing Corp.
The agency has found its groove by focusing on two specific areas: compensation and selection (i.e., impact ratio analysis), the two aspects of OFCCP compliance that can result in significant monetary liability. Although the OFCCP says it cares only about improving diversity at the workplaces of government contractors, in reality it is going for the big bucks. The other aspects of compliance–including accurate development of written affirmative action plans and good-faith efforts to accomplish established goals–seem to have taken second place and are scrutinized only after the agency determines that there are no big-money issues. This aggressive stance on the part of OFCCP is truly unprecedented.
More evidence of the OFCCP's new-found aggression lies in the regulatory changes that took effect in mid-December 2000. Among other things, the changes now allow the agency to send mandatory Equal Employment Opportunity (EEO) surveys to all government contractors requesting information in two areas. (Here's a test: which two areas do you think the surveys ask about? If you answered the "big-money" issues–compensation and selection activity–you win.) Based on its initial review of the survey information, the OFCCP will target employers who have "potential problems" and schedule them for focused audits. The agency itself has admitted that the targets of these focused audits will be only those contractors who appear to have major inconsistencies in compensation or adverse impact in the selection of females and minorities (a.k.a. "potentially large monetary liability"). This development alone gives Clinton some of that legacy he's been searching for and should give George W. Bush plenty of mischief.
Now, of course, the big question is this: Will Bush get the OFCCP back in touch with its former, less-aggressive, self? The Lawyer Answer: It depends. Bush is clearly less sympathetic to OFCCP's objectives than either Clinton or Gore. However, Bush's lack of a mandate (not to mention a majority vote) could severely weaken his ability to do what he might like to do with the agency. He may prefer bipartisanship and fence-mending to taking an aggressively pro-business stance. If so, we expect the new OFCCP regulations and its new focus on big-buck liability to continue with a Bush II Administration.
On the other hand . . . Bush's ill-fated nomination of conservative Linda Chavez as Secretary of Labor indicates he may not be as conciliatory toward the Democrats as one might have expected, given the election results. Although Chavez didn't make it, if a like-minded individual becomes Secretary of Labor, we can almost certainly expect some paring back of the Department of Labor and particularly the OFCCP. (Whether a like-minded individual can survive the Senate confirmation process is somewhat less certain.) Not even a conservative Secretary of Labor will be able to change the new regulations anytime soon, which was exactly Clinton's plan. Thus, we can expect the OFCCP to "proceed as planned" with sending out EEO Surveys to 50 percent of the government contractor population in 2001 and the remaining 50 percent in 2002, and picking fights whenever it smells money.
Until Elaine Chao, or whoever survives the confirmation process, can rein in the OFCCP, we recommend that contractors take a proactive approach to affirmative action issues. Employers who procrastinate until the 30-day letter arrives are almost certain to get nailed. In addition to keeping your affirmative action plans up to date, I recommend that you go beyond "full compliance" by conducting quarterly reviews of the two major monetary liability areas. This will allow you to identify problems and develop a plan to correct them without the assistance of the OFCCP. I can guarantee that if the OFCCP has to "help" you correct these problems, it will expect no less than full recognition for doing so.
Welcome to the "new and improved" OFCCP.
Mandi Smith T is co-chair of Constangy's OFCCP practice.
EDITOR'S NOTE: Constangy recently sent out a Client Bulletin on the specifics of the new OFCCP regulations. If you did not receive a copy or have misplaced yours, you may access it online by visiting www.constangy.com, going to the "Legal Updates" page, and clicking Bulletin Number 330.
REMINDER: Don't forget to make plans to join us for Labor and Employment Symposium 2001, April 25–27, at the Marriott Marquis in Atlanta!
Update Your Employee Retirement Plans
Amended and restated retirement plan documents must be submitted to the IRS by the last day of the 2001 Plan Year. Plan sponsors should now begin the process of updating their retirement plan documents and gathering the financial and employee census information that must be submitted to the IRS. The IRS will review the revised plan document along with this additional information and decide if the plan remains in compliance with the Tax Code. For more information contact
Ira S. Friedrich or R. Carl Cannon at (404) 525-8622,
or Dana Thrasher at (205) 252-9321.
CHECK US OUT
Don Benson (Atlanta Office)
"New Georgia Law Helps the Stalked Employee," HR Atlanta, October 2000 also, "Document It!," Competitive Edge Magazine, November/December 2000
Pat Tyson (Atlanta Office) "State and Local Employees Unprotected," Safety and Health Magazine, October 2000 also, "The Final Days of Charles Jeffress," Safety and Health Magazine, November 2000
Maureen Knight (Paralegal, Arlington Office) "The History and Future of Class Action Lawsuits," Legal Backgrounder, a publication of the Washington Legal Foundation.
QUARTERLY QUIZ ANSWER
No. The general rule is that a company is obligated to grant FMLA leave only to employees who work at facilities with at least 50 employees within a 75-mile radius of the worksite. However, if a field employee has no company-provided office, he or she is deemed to be an employee of the company's general offices for FMLA purposes. Thus, as long as Your Company has more than 50 employees within a 75-mile radius of its general offices, then the sales rep in Outerville is entitled to FMLA leave for a qualifying reason. On the other hand, if the sales rep reported into a field office, then that would be her "worksite" for FMLA purposes, and she would not be entitled to FMLA leave.
Reason Prevails…
Plaintiffs from Mars . . . and Venus. In separate decisions, courts dismissed the following claims under the Americans with Disabilities Act: (a) a heavy-machine operator with sleep apnea who was fired for sleeping on the job; (b) a psychiatrist in a state mental hospital who couldn't work with sick or violent patients; and (c) a switchboard operator whose "disability" was fear of snakes. Sad that we have to take such pleasure in these obvious decisions, but see Arbitrator Chandler's decision, right, for a good reason why we must.
Age act ceases to apply after other foot enters grave. A federal court in Michigan dismissed the ADEA claims of the widow of an employee who was terminated and then committed suicide.
"If men could get pregnant . . ." this probably would have been the law a long time ago. (Just kidding, guys–really.) The EEOC has decided that it is a violation of the Pregnancy Discrimination Act for employers to offer health insurance for some prescription medications, including Viagra, but not for prescription contraceptives.
And Reason Flails…
Glen, Glenda breathe sighs of relief. The City of Portland, Oregon, has added "gender identity" to the list of characteristics protected by its anti-discrimination ordinance.
Bad month for aliens. The AFL-CIO and its allies raised enough of a stink about conservative Linda Chavez's illegal alien houseguest to cause Chavez to withdraw from consideration for Secretary of Labor. In the same month, actor Ray Walston, star of the 1960's sitcom "My Favorite Martian," died.
Work-related killing, no! Non-work-related killing, si! An arbitrator in Massachusetts ordered a company to reinstate with back pay an employee who was suspended after he allegedly killed another parent at his 10-year-old son's hockey game. The incident, "though it led to a most serious result was not company related," said never-to-be-accepted-by-management-again Arbitrator Joseph Chandler.
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