Backlash Against Remote Working as Companies Order Employees Back to the Office

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An IBM-convened panel at SIOP 2017 explored the benefits and challenges of remote working. With perspectives from academia as well as public and private sectors, the consistent message was that teleworking works, and that associated challenges can be managed with careful planning and communication.

Apparently IBM doesn't believe its own research.

Last week thousands of IBM employees — roughly 40 percent of the total 380,000 workforce — were given an ultimatum. They must either relocate to a regional office or leave the company. This will be a substantial hardship for many of those employees because they may live hundreds of miles from the nearest regional office. 

IBM's move is part of a growing trend among larger tech companies that are rethinking telework. Within the last several years Best Buy and Yahoo both ended or severely restricted their telework programs.

The fact that Yahoo and IBM have made this move is pretty surprising to me. Most research on the subject indicates that teleworking, when handled correctly, works. In fact it works better than working in the office for many. The true enemy of deep, substantive work is often the office environment itself. Meetings, office chit chat, and all the distractions that find their way to your office or cubicle are the real enemies of work. 

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Here is an interesting article from remote work proponent Jason Fried discussing why he thinks companies like Yahoo are making a mistake by eliminating remote work options. Put simply, if you hire quality people who are interested in doing meaningful work, then remote working is a great option. If remote working is not working in your organization, then it likely indicates a problem with the type of people you are hiring or in the structure of your organization itself. 

Perhaps these companies that are ending remote work programs are mistakenly addressing a symptom of a larger problem within their organizations.  

Jury awards $769,000 Against Washington University in Disability Discrimination Case

A St. Louis woman has won a $769,000 verdict against Washington University in a trial alleging the school refused to accommodate her disability and then fired her.

The plaintiff, age 55, worked as a researcher at the university's medical school from 1996 to 2012 and had herniated disks, according to her lawsuit. She claimed her back problems caused her extreme pain in certain positions "including but not limited to cell culture and bench work" and that the university and her supervisor discriminated against her by not accommodating her condition.

Her lawyer said the university in November 2012 fired her from her cancer research position, telling her the school had lost funding for her projects. Her lawsuit said her firing was in retaliation for her request that she not be required to sit and bend over for excessive periods of time.

After a five-day trial in St. Louis Circuit Court, the jury Friday awarded Lin $269,000 in actual damages and $500,000 in punitive damages.

It should be noted that St. Louis is seen by many as being one of the most plaintiff-friendly venues in the country so your mileage may vary. 

Read the story here.

 

 

$51 Million Dollar Verdict Awarded in Age Discrimination Case

A former Lockheed Martin engineer, who sued for age discrimination after being laid off at age 66, was awarded $51.6 million by a jury in a federal court in New Jersey. This may be the highest amount ever awarded to an individual in an age discrimination case, and stands as a stark reminder that age discrimination remains a big — and potentially very expensive — issue for HR.

Robert Braden was a mid-level manager who spent almost 29 years at a Lockheed Martin facility in Moorestown, NJ. He claims that he was a target in a reduction in force plan to replace older workers with younger ones, and that he and other older workers consistently received less pay and lower reviews and raises than younger workers.

In his lawsuit complaint, Braden said that he was the oldest of six engineers in Lockheed's Electronic Systems-Mission Systems and Sensors unit, that his title was project specialist, senior staff, and that he was the only one let go in that round of layoffs. He said that he was given no specific reason for his termination and that his job performance had been "excellent." He also said that supervisors and company executives regularly made remarks about older workers.

The $51.6 award breaks down like this:

  • $50 million for punitive damages under the New Jersey Law Against Discrimination,
  • $520,000 for economic loss,
  • $520,000 for willful action against the Age Discrimination and Employment Act (ADEA) and
  • another $520,000 for pain and suffering.

(Note that in Texas, the size of the this verdict would have been greatly reduced by the application of damages caps passed by the Texas legislature to protect companies who commit this type of wrongful conduct.)

Discrimination against older workers remains a significant problem

While the size of the Lockheed verdict is certainly surprising, workplace age discrimination, unfortunately, is not. A 2013 AARP study found that almost two in three workers ages 45 to 74 said they have experienced workplace age discrimination.

And with an aging US population and ongoing economic uncertainty, more people plan to or must stay in the workforce well past the age of 65. As a result, managers and supervisors should take steps to ensure all employees are vigilant and sensitive to behavior and practices that can be grounds for an age discrimination claim.

Don't Sign Away Your Right to Get a New Job

The growth of noncompete agreements is part of a broad shift in which companies assert ownership over work experience as well as work. A recent survey by economists including Evan Starr, a management professor at the University of Maryland, showed that about one in five employees was bound by a noncompete clause in 2014.

Employment lawyers say their use has exploded. Another recent study showed that noncompete and trade-secret lawsuits had roughly tripled since 2000. Noncompete agreements are not being used beyond the realm of protecting truly proprietary information.  They are being used, and arguably abused, by companies of all types against employees at all levels. 

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. A recent article in the New York Times tells the story of Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another.

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

Read the entire New York Times Story

 

Ignoring a Non-Compete or Retention Agreement Can Cost You Serious Money.

Story in the HoustonPress reports a former employee of the popular Buc-ee's convenience store chain is being sued for more than $60,000.00 for allegedly violating what is called a retention agreement. 

The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement". 

What is a "Retention Agreement"?

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit. 

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00.

Are Retention Agreements Legal?

In a word, yes. If drafted properly, retention agreements can be enforced against employees in Texas. However, it is highly unusual to see such an agreement used with anyone other than high-level company executives. 

In the case of Ms. Rieves, a trial court ruled in favor of the company last fall. And it gets worse. The Court also ruled that, in addition to the original sum she owed under the contract, she was also responsible for the company’s legal fees plus interest on the retention pay since she left Buc-ee’s. 

The total the company is now seeking from Rieves approaches $100,000. The matter is currently on appeal. 

The Moral of the Story.

Don't sign an employment contract without having an attorney review it for you. Don't sign an arbitration agreement without having an attorney review it for you. Just don't! 

As a lawyer who primarily represents employees, I spend a fair amount of my time trying to help workers get out of contracts that they never should have signed in the first place. It is an uphill battle. 

The time to negotiate or get changes to employment-related contracts is BEFORE you sign them. Companies do not necessarily have your best interests at heart. You need to understand the implications of what you are signing BEFORE you sign it. A couple hundred dollars spent on lawyer contract review may seem like a lot when you are excited about starting a new job, but compared to the economic havoc that can be caused by signing a contract you don't understand, it's peanuts. 

Get the information you need to protect yourself and your family. It may be the best money you ever spend.

 

Can You Trust Your Company's HR Department?

A fellow blogger has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."
Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

 

 

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

  1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.  
  2. You know that written report from number 1, above?  KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost. 
  3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally. 
  4.  Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent. 

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.  

Tip Pool Violations and Other Forms of Wage Theft Common in the Restaurant Industry

The Wall Street Journal recently reported that wage lawsuits against restaurants have proliferated in troubling and damaging numbers:

“…The number of wage-violation lawsuits has been on the rise for more than a decade, driven by a successful worker-organization movement, increased attention by plaintiffs’ attorneys and complicated labor laws that leave some employers confused, according to legal analysts and industry leaders.

Nationwide, these lawsuits have doubled in the last 10 years in federal courts. In Texas, the number of overtime lawsuits and settlements continues to increase as well. The US Department of Labor recently reported that its wage and hour division found violations in 95 percent of its investigations of Austin-area restaurants between Oct. 1, 2015 and June 30, 2016. 

So why do the vast majority of restaurant employers continue to violate wage laws despite news reports of DOL investigations and lawsuits? 

Read more about overtime claims by restaurant workers.