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The “not-so-top” ten

December 31st, 2011  |  Lisa Milam-Perez

The Supreme Court turned up its nose at state bans on class-action waivers in arbitration agreements, and then felled a mighty class action discrimination suit against an even mightier employer. And the NLRB “went rogue,” in the eyes of management attorneys and Congressional Republicans. These Big News Stories have surely earned their standing on all of the year-in-review and “top ten” lists, and the extensive coverage that Employment Law Daily afforded them.

But for my last glance at the passing year, I looked back at some of the smaller stories that were crowded out—the trends, the tragedies, the downright truculence—that make labor and employment law the compelling human interest story that it is, year in and year out. Here, some “not-so-top,” not-quite ten stories that gave 2011 its flavor:

1. Guess the next employer who pays out unemployment benefits!

Announcing that he was beefing up “secret shopper” visits in an effort to catch cashiers behaving badly, the owner of a chain of Iowa convenience stores sponsored a “Guess the Next Cashier Who Will Be Fired!” contest, inviting employees to place their bets on which of their coworkers was next to be shown the height-chart adorned door. “To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Seal it in an envelope and give it to the manager. If the name in your envelope has the right answer, you will win $10 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again. And no fair picking Mike Miller from (the Rockingham Road store. He was fired at around 11:30 a.m. today for wearing a hat and talking on his cell phone. Good luck!!!!!!!!!!”

“This guy was the boss from hell” who “treated pretty much all of us like dirt,” one reluctant contestant told USA Today. She and her store manager (and a few other employees) quit when they realized the memo wasn’t a joke. “It was very degrading,” she said. An Iowa law judge agreed, calling the contest “egregious and deplorable.” Although the boss insisted the employee had quit voluntarily, the law judge concluded that the owner had created a hostile work environment that made work conditions intolerable, justifying the employee’s departure and an award of unemployment benefits. (No word, though, on how poor Mike Miller fared.)

2. A War on Thanksgiving?

Another unfortunate retail worker is still on the job, but found his hours cut sharply after he created an internet dust-up in protest of Target’s decision to make employees work on Thanksgiving to prepare for a midnight “Black Friday” opening. As the day-after-Thanksgiving mall rush has become an increasingly critical (and competitive) sales event, retail workers’ Thanksgiving celebrations (and “food coma” recovery time) have been cut ever shorter. This year, some workers pushed back. The employee’s initial online petition generated more than 37,000 signatures and more than 50 copycat petitions that, in all, drew 200,000 names in support.

3. That employee handbook might have saved him… if it were bound in Kevlar

A Walgreens pharmacist in Michigan was fired after he pulled a gun on two armed robbers who burst into the store and took an employee at gunpoint in a 4:30 am robbery attempt during the night shift. One of the gunmen leaped over the pharmacy counter, raised his weapon and attempted to shoot the pharmacist, who had been trying to call 911. When the pharmacist pulled out his own handgun and fired several shots, the robbers immediately fled the store. Five days later, Walgreens fired the pharmacist (who had secured a license to carry after a previous robbery at the store) for violating the company’s “non-escalation” policy, of which he was unaware. According to the pharmacist, he had repeatedly asked management to address security issues at the store, but those requests fell on deaf ears. His wrongful discharge lawsuit surely won’t.

4. Is the Choklit Shoppe off-limits too?

It’s a story that would make Mr. Weatherby blush. Archie Comic Publications Inc. filed a sexual harassment action against the company’s female co-CEO, who took over her share of the reins following the death of her husband, an heir to one of the Archie Comics creators. The employer sought a permanent injunction barring Nancy Silberkleit from entering its corporate offices, alleging that she made repeated threats to employees and used obscenities with abandon in the workplace. According to the complaint, Silberkleit barged into a corporate meeting, pointed to each of the four men in the room, shouted “PENIS” at each of them in sequence, then stormed out. She also made comments like she had to “adjust my [insert slang for testicles] because they are irritating me” and on one occasion instructed a new employee to “stand up and pull down your pants,” the complaint alleged. (An investigation carried out by an outside HR consultant elicited affidavits from nine employees attesting to the co-CEO’s inappropriate conduct and concluded with a recommendation that she be terminated immediately.)

Archie Comics filed a motion seeking an emergency order barring Silberkleit from working at the corporate offices or having any contact with the company’s employees or vendors. It also sought to enjoin her from attending Comic-Con, the industry’s annual trade show and geek center of the universe. A New York court refused to bar her from the premises, noting such a remedy was not available under the terms of her employment contract. But it did enjoin Silberkleit from “harassing, yelling at or abusing anyone at the Archie Comic Publications’ offices” or communicating with any employees other than the company’s other co-CEO. Undaunted, Silberkleit was threatened with contempt earlier this week for violating the court’s order when she showed up at the office with a former pro football player on her arm as a bodyguard and began yelling at employees. For her part, the defendant says the lawsuit is nothing but a “corporate power grab” and the allegations of harassment “rank hearsay.”

5. The devil was in the decal.

A north Georgia factory worker claimed he was fired for not wearing a symbol that he said represents the devil, alleging the employer violated his religious rights when he was forced to wear a sticker bearing the number 666. “The people that accept the mark, they’re going to burn in hell,” said Billy Hyatt, a devout Christian. “There’s no way that I’m going to put that on my body.”

Employees were required to wear stickers denoting the number of days the company had gone accident-free. With day 666 approaching, Hyatt asked to be excused from wearing the sticker. He even requested a vacation day so that he wouldn’t be on-site when coworkers wore the number. (To his credit, he didn’t think to feign a slip-and-fall to reset the count to “0.”) When the day came and he refused to wear the number, the boss told him his beliefs were “ridiculous,” that it was just a sticker, and that he was to wear it or face suspension. “Well it’s not just a sticker,” said Hyatt. “666 is the mark of the beast.” He was fired soon after, and then filed an EEOC complaint. Hyatt’s federal suit is currently pending.

In a similar case, an employee who refused to provide his social security number during a mandatory drug test was unable to establish that providing the required information would have violated a bona fide religious belief. The employee did not state at the time why he refused to provide his social security number. And vague references to “mark of the beast” were not enough to put a reasonable person on notice that he had a strongly held religious belief preventing him from using the number. (The fact that he put his social security number on his initial job application without protest, and also used it to obtain his driver’s license, didn’t help his case.)

6. Don’t forget “Sexual harassment-suit Saturday?”

At least you could credit his organizational skills. The company owner who was named as a defendant in a sexual harassment suit filed in a Utah federal court made out a weekly office schedule that entailed a dress code, including: “Mini-skirt Monday (no panties allowed),” “Tube-top Tuesday,” “Wet t-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.” It gets worse.

7. Grief uncontained by the cubicle.

The heartbreaking facts that unfolded in this case posed a dilemma that could keep even the most seasoned HR veteran up tossing in bed at night. A grieving mother whose boss asked her to finally remove her dead daughter’s photos and ballet slippers from her work cubicle, and allegedly told the employee to act as though her daughter “did not exist,” had no claim against the supervisor or her employer, Ortho-McNeil Pharmaceutical, a New Jersey appeals court held.

The employee, who worked as an administrative assistant in the company’s marketing department, was understandably bereft after her only child, a teenage daughter, ballet dancer, and pre-med hopeful, was diagnosed with leukemia and died two years later. She hung the photos and ballet slippers at work to honor the girl’s memory. But after a year-and-a-half, her coworkers grew increasingly uncomfortable with the employee’s ongoing need to talk about her daughter and her death. They began to avoid her, and then complained to human resources.

The boss was assigned the unenviable task of counseling the grieving worker. He told her of her coworkers’ discomfort, asked that she remove the daughter’s items, and suggested, “If you have the need or urge to talk about her you can come into my office and speak of her behind closed doors.” In the employee’s eyes, she was being told to “no longer speak of her daughter because she is dead” and to “act as if her daughter did not exist.” She left work “crying and sobbing,” and never returned. The employee sued for discrimination, constructive discharge, and intentional infliction of emotional distress. But even though a jury could find that the supervisor was “insensitive” or “negligent of plaintiff’s vulnerability in her continuing bereavement,” the appeals court found, his behavior was not “atrocious and utterly intolerable in a civilized community.”

8. Penn State—the whistleblower angle.

On occasion, the course of human events leaves employment lawyers trying in earnest to explain finer points of the law to an angry public. The Penn State scandal that unfolded this year was such an event. After assistant football coach Jerry Sandusky was arrested on abuse charges, some wondered why, given the firings of legendary head coach Joe Paterno and other members of the coaching staff, coach Mike McQueary was still on the payroll. After all, McQueary had witnessed the assailant sodomizing a 10-year-old boy in the football-building shower but remained silent. The explanation—that McQueary may be protected from discharge by state whistleblower laws—didn’t sit well for many. Some questioned how the witness could even be deemed a whistleblower on these facts. But at least one commenter argued it was irrelevant, that the law be damned: pay the damages, pay the fees, and fire him anyhow. Whatever the merits of the whistleblower theory in this case, the events that unfolded at Penn State are a compelling reminder that sometimes, compliance and liability concerns ought not to be the largest considerations at play.

9. Well, no one looks in the yellow pages these days.

Buy Now on GroupOn! Two-for-one mani-pedi’s! $10 for $20 worth of gourmet cupcakes! 60-percent reduced fee on severance negotiations! Just another novel business development tack for the social media age. And it’s hardly far-fetched: Both the South Carolina and North Carolina state bars have issued ethics opinions on the wisdom of offering legal services on daily deals sites, advising that to adopt such a promotion does not violate ethics rules. The logistics of doing so is a different matter, one that gets taken up by Virtual Law Practice blog and its readers. And the wisdom of this marketing strategy is another issue altogether, notes The Strategist.

Or there’s always the old-media approach. “Boss taking advantage of you?” The Los Angeles firm Solomon, Saltsman & Jamieson has placed 17 billboards on the city’s Westside asking this perennial ice-breaker. The billboard shows a man (presumably the boss) with a suggestive smirk towards a woman, who is tending to her work at a filing cabinet, bent over beside him. To inform workers of their rights “and legal recourse to stand up for themselves,” the firm created Mybossstinks.com, an information resource for aggrieved employees. In a press release announcing the billboards, the firm said it hopes the provocative ad also “prompts bosses to do the right thing so we don’t need to get involved.” But just in case they do, a link to the firm’s website is provided.

I eagerly anticipate what “not-so-top” ten stories the new year will bring. Happy 2012!