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.

It's All In The Paperwork

It happened, again! A client in the public sector called about a disciplinary matter involving an insubordinate employee. Apparently, the worker had engaged in a plethora of improper conduct over a period of several years. While there are certain time limitations regarding misconduct under New York’s Civil Service Law, there seemed to be enough activity which had occurred within the statutory period to prefer disciplinary charges based on the description given to me by the client. Then, I asked the $64,000 question ... “what documentary proof do you have?” There was silence on the other end of the phone, and then a lot of hemming and hawing about how everybody “knew” the employee was routinely late for work, insubordinate, etc. Oy vey!

Regardless of whether the situation involves public or private employment, the mantra for employee discipline is “document, document, document.” When faced with disciplinary issues, an employer generally does not want to rely solely or mostly on testimony as witness credibility then becomes the main focus of the inquiry. That can backfire (big time), particularly if the witness is a current employee who may be viewed by the other side as having a vested interest in testifying favorably for the employer in order to keep his/her job. Also, recollections can change drastically from the time of witness interviews to the point where sworn testimony is taken. It’s no fun when a witness changes his/her story in front of the trier of fact and doesn’t bother to tell the attorney. Phrases such as “what the !$%#” run rampant through one’s head on such occasions. Contrast that nightmare with a situation where documentary evidence exists in the form of disciplinary warnings or memoranda issued by a Supervisor which detail the misconduct and provide the employee with an opportunity to respond in writing. I think you get the picture.