The "Gene, Genie"

With all due respects to David Bowie. Earlier this week, the Federal Genetic Information Nondiscrimination Act of 2008 was signed into law. Employers are now prohibited from discriminating against current and prospective employees on the basis of genetic information. In addition, the new law prohibits insurance companies from determining eligibility or making changes to premiums based on genetic information. I continue to be astounded at how long it takes for positive legislation like this to plod through the halls of Congress before it finally gets enacted; apparently, it took over 10 years to do so. I wonder how long it will take for the several States to act similarly.

Death Takes A Holiday ... And Then Some

In Adams v. Verizon New York Inc., et al., 04 Civ. 4314 (S.D.N.Y. - Decided: May 13, 2008), the court granted summary judgment dismissing Plaintiff’s claims as against the employer for breach of a collective bargaining agreement, and as against the Union for violating its duty of fair representation.

The Plaintiff was the administrator of the Estate of her son, a deceased employee of Verizon and a union member. During the course of his employment, the son developed an absentee problem, resulting in numerous, prolonged, and unapproved absences. He was disciplined on several occasions, but to no avail. Indeed, in 1999 he was absent for a total of 59 days. In 2001, he was absent for a total of 177 days. WOW! He was eventually placed in the employer’s Absence Control Program, but continued his absenteeism, albeit to a lesser extent than before. Ultimately, after being advised by his Supervisor that he was going to be suspended for yet another unapproved absence, the son announced that he was leaving and walked out. He left the company premises and did not return.

The Plaintiff alleged, among other things, that the employer breached the collective bargaining agreement by terminating her son’s employment without just cause. She further alleged that the Union violated its duty of fair representation. In granting summary judgment, the court held that the employer reasonably interpreted the son’s actions as an abandonment of his job, constituting just cause for the termination. The court further held that the Union had represented the son fairly in his grievance proceedings and acted within its discretion in declining to bring his claims to arbitration.

It never ceases to amaze me. Here, the employee was absent for 177 days in one year alone, and still there was an allegation that such excessive absenteeism failed to constitute just cause for discharge. Sheesh! In situations such as that in the Adams case, a reality check is in order for both Plaintiff and counsel.

An Alarming Statistic

I read recently where the number of New York City construction projects halted for safety violations has grown to 79% since January, 2008. That's quite a jump. There is debate as to whether those stop work orders are based upon the existence of actual, dangerous conditions or very minor infractions involving paperwork and the like. Apparently, some believe that the New York City Department of Buildings has become exceedingly paranoid after several high-profile accidents (e.g., the recent crane disaster). Owners and contractors complain that the resulting delays are costing them millions of dollars. If there are, in fact, safety issues that must be addressed, then it's time to take action to ensure the safety of workers and the public. On the other hand, if the stop work orders are based on ministerial issues, they may need to be revisited. In either event, guess who will pay ultimately?

It's All In The Timing

In Forde v. Beth Israel Medical Center (06 Civ. 901 - Decided: 4/22/08), the Southern District of New York granted summary judgment to the employer and dismissed the Amended Complaint in a pregnancy discrimination case. The case is interesting because it addresses the issue of the close proximity of employment termination to the Plaintiff's announcement of her pregnancy.

The Plaintiff was employed as the office manager for a staff physician. Apparently, there were significant deficiencies in the Plaintiff’s work performance, including her failures to file transcripts, answer requests for medical records, and to schedule and clear patients for surgeries. Some patients were given the wrong dates for their surgeries, while others were not scheduled for surgery in a timely manner. Numerous complaints were received about the Plaintiff’s work, and she was made aware of her work deficiencies on several occasions.

Plaintiff eventually learned that she was pregnant. She notified her employer of her pregnancy about a week later, after which she was terminated based on her prior poor work performance as well as newly discovered instances thereof. The Plaintiff sued based on allegations that the termination of her employment, made so soon after announcing her pregnancy, constituted unlawful discrimination.

The court granted the Defendants’ Motion for summary judgment dismissing the Amended Complaint. In so doing, the court found that Plaintiff’s poor work performance was generally undisputed and that a legitimate, non-discriminatory reason existed for the Plaintiff’s discharge. The court also found that while timing may be sufficient to establish a discrimination inference, the close proximity of termination to the Plaintiff's announcement of her pregnancy, in and of itself, was insufficient to demonstrate a pretext.

I like this one. In this case, timing is not everything.

Dancing With The Bar

The New York Law Journal reports that a law firm has taken the highly unusual step of filing a preemptive lawsuit against a secretary who has demanded $9 Million to drop what the firm claims are false rape and sexual harassment charges against one of its partners. Here’s the kicker ... the firm has denied that the partner (who is married) raped the secretary, but admitted that she gave him a consensual "lap dance" in his office. But wait, it gets better. Apparently, the Complaint alleges that: "As she performed the 'lap dance,' [the partner] became aroused and ejaculated inside his underwear while he was wearing his underwear and pants, using a towel to clean up."

HELLO! What in blazes is going on here? This sounds like fodder for a bad TV show. Regardless of the merits of the Complaint (or the lack thereof), the conduct of the partner is wholly indefensible. I guess the law firm should have consulted a good attorney.

"But, I Was Told The Project Wasn't Public Work!"

I hear about this a lot, so please pay close attention.

In considering submitting a bid, a contractor inquires of the Owner as to whether the project is "public work." Public work requires the payment of statutory prevailing wages and supplemental benefits to those working on the project. Typically, the prevailing rate of wages is the union rate in the locality in which the work is being performed, and is usually much higher than the regular, private wage rate paid by the contractor.

Generally, in determining whether a construction project is public work, two conditions must be fulfilled in order for the provisions of New York Labor Law Section 220 to apply: (1) a public entity must be a party to a contract involving the employment of laborers, workers or mechanics; and (2) the contract must concern a project which has the primary objective of benefiting the public.

Back to our story. The contractor is told by the Owner that the job is not public work, and obtains written confirmation of that fact from the Owner. The contractor proceeds with the work and is eventually informed by the New York State Department of Labor that the project is a public job. The contractor is further informed that it has underpaid its workers since the higher, prevailing wages and benefits should have been provided. In response, the contractor confidently produces the Owner's written confirmation as to the private nature of the work. Guess what? If the project is, indeed, "public work" as defined by statute, the contractor must pay the differential between what it actually paid and the prevailing wage (together with supplemental benefits), despite the Owner's written representation to the contrary. Penalties and interest may be imposed as well.

It's not always clear whether a project is public or private work. Bottom line ... be very careful out there.

The "No Jerk" Policy

That's right, folks ... you read the title correctly. More and more employers are implementing a "no jerk" policy in the workplace. Sometimes it's known as a "no a**hole" policy. Essentially it's a code of conduct for employees requiring a showing of respect toward others as well as the avoidance of bad behavior under penalty of termination. Such policies generally make sense and are effective. Even one employee with a behavioral problem not attributable to a medical condition (i.e., your basic JERK) can cost a company a small fortune in lost productivity, poor morale and lost business, thereby resulting in lower wages for all.

Now, if only they had such a policy in Washington.