Sadly, the law can be a jealous mistress. For purposes of this piece, my point is that the law really doesn’t care about how others conduct their businesses; she only cares about whether you’re following occasionally tricky and sometimes convoluted directives. If you think that I’m kidding, wait until the West Virginia Division of Labor (“DOL”) knocks on your door one day.
Though traditional class actions have long been barred under the Fair Labor Standards Act, Congress provided within the statute a provision allowing “collective actions.” The provision provided a vehicle for groups of employees with similar grievances to be represented by a representative plaintiff. Though the mechanics functioned slightly differently (i.e., potential plaintiffs in an FLSA collective action must opt-in to the suit, rather than opting out under traditional class action rules), the general premise was the same. These actions could carry high costs for employers, especially when large numbers of employees were included in the collective action. One particular strategy which has been developed for dealing with class actions and collective actions is using an “offer of judgment” under Rule 68 of the Federal Rules of Civil Procedure to render moot the lead or representative plaintiff’s claim.
In my last blog post, which can be found here, I observed that it seemed the NLRB had “jumped the shark” and lost its relevance. I suggested that one way to restore some legitimacy to the NLRB was to appoint true “neutral” Board members culled from a pool of neutral arbitrators. Alas, the President must not read this blog.
When employers are hauled into Court and sued for discrimination after already defending a charge for the same conduct in front of the EEOC or state human rights agency, they usually have a pretty good idea what they are defending. Sometimes employees try to play hide-the-ball with their allegations, however, and that makes those suits harder to defend. Fortunately for employers, at least one Court has taken a stand against that kind of subterfuge.
“If he stops moving, take the pillow off his face.”
I uttered these words to one of my sons just the other day as I passed through the living room and continued on to the bedroom. As I closed the door behind me, I thought perhaps I’ve become a little too desensitized by living with three very active boys. “Boys will be boys” is simply a convenient justification that makes my world run more smoothly. Not to downplay the potential suffocation of one’s offspring, but the idea got me thinking about the little things we become accustomed to in the workplace because they’ve gone on so long. Have you ever heard someone say, “Well, that’s the way we’ve always done it?” In the employment setting, that complacency can be a dangerous thing.
Readers of this website have heard from the Employment Essentials Team ad nauseum about the dangers of horseplay and shop talk. I was in a workplace just the other day, seated in a waiting area, when I heard from the open-windowed reception office behind me, “feel better now that you’ve drained the main . . .” well, you get the picture. I’ve never heard this spoken outside of a movie and certainly never in the public area of a business. Did this employee mean anything by his vulgarity? Of course not. Would he have said it if a female co-worker had been present? Gosh, I hope not.
But, alas, this is the problem. Getting along with your co-workers in a friendly, we’re-like-a-big-dysfunctional-family kind of way is great, but you can’t lose sight of the fact that you are in a place of business. Harassment law says that you must look at the particular circumstances of the workplace to determine if a harassment claim is legally viable. Noogies, wedgies, and vulgarity may not be unusual in some work environments, but that doesn’t mean an employer should become desensitized to this behavior. An important client overhearing the potty talk I heard might just walk, and that’s not good for business. If this type of behavior gets out of hand on the shop floor (and it has a tendency to do just that) then the potential lawsuit you could face is likewise not good for business. Training keeps your employees sensitized to proper behavior, and that is good business.
Another type of training that gets overlooked is training for new managers. Giving introductory training to new employees is often called “onboarding,” and a similar formalized process should be used when new managers are hired. From my view, you need to remember that these folks are potentially your witnesses in a lawsuit. They are also individuals whose knowledge may be imputed to you – the employer – in an employment claim. Your expectations for them should be and often are very different than for rank-and-file employees. They have to know and enforce your workplace rules. They may have to fill out forms on performance. They have to lead. These are among the many reasons why they must be trained.
Without this training, verbal abuse from managers is something which employers and employees alike tend to become desensitized about. In fact, employers often just attribute this to a manager’s “management style”. I’ve been horrified at many a kids’ baseball game by the treatment of players by certain coaches. Isn’t that behavior just as repugnant on the ball field as it is in the workplace? It is in my view.
My last thought on desensitivity at work came about when I read our piece on the DC Circuit’s decision on the National Association of Manufacturers’ challenge to the NLRB posting rule. If you haven’t read that, you should check it out HERE. Front and center in that dispute was a notice about unions and employee rights that the NLRB tried to require employers to post. Of course, employers have a whole array of items they are required to post at work – typically on a bulletin board or the like where employees can read them. Sometimes, these posters become important in the defense of lawsuits. Almost always, they have a purpose of conveying a message – just like regular advertisements. I have a friend who uses a billboard to advertise his services. I drove past it almost every day for at least a year – until recently, that is, when I drove by and didn’t see the advertisement any longer. When I asked my friend why he’d moved his signage, he explained that he was afraid that he’d become part of the landscape. In other words, folks were desensitized to seeing the sign in its spot, and it was no longer serving its purpose to draw in business.
This might be an interesting concept for an employer to apply to the required postings board. People walk past the board and no longer see what’s there because it has become part of the landscape. I can’t help but think of the hay I could make in a case where the posted rights become an issue if I could say to a jury: “We want our employees to know their rights. This is important enough to us that we move the posters around on the board occasionally so they catch our employees’ attention and are more likely to be read, rather than allowing them to become part of the workplace landscape.”
Don’t become desensitized to your landscape at work. We’re all one trip over an extension cord away from a lawsuit. In my view, being aware of your surroundings is just as important at work as it is when you’re a parent. What do you think?
If West Virginia Governor Earl Ray Tomblin signs a bill currently on his desk, West Virginia employers will have more time to pay final wages to discharged employees. Prior to its pending amendment, the Wage Payment and Collection Act required that employers pay discharged employees within 72 hours of termination. Senate Bill 355, approved by West Virginia’s Legislature, instead requires payment to discharged employees no later than the next regular payday or four business days, whichever comes first. “Business days” include days on which state offices are open for regular business. Payment is to be made through regular pay channels or, if requested by the discharged employee, by mail.