'Twas the Employment Law Night before Christmas

'Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

What can "Elf" teach us about the ADA?

Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons.


Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved for "special" elves).

Assuming that Buddy's height is a disability in the North Pole (and if the ADA protects dwarfs down south, it's safe to assume the North Pole's disability discrimination laws would similarly protect Buddy's heightened height up north), what ADA lessons does this parable teach us?

Lessons from children’s lit: A New Year’s resolution

Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be known just for bodies of water. Black is tired of outlining objects to be filled in by other colors. Yellow and Orange are no longer speaking to each other, each believing it is the true color of the sun. And Beige, his wrapper having been peeled off, is too embarrassed to exit the box naked. It’s a very clever book, and the sounds of both my kids cackling during it’s telling is their gift to me.

The lesson to draw from this story is important for all employers to take to heart. Employees are unique. Each has his or her own personality, needs, and wants. For this reason, an employer cannot treat all employees the same. To appease Black by re-wrapping it will not address its concern of only being used for outlining, and by using Beige to fill in the ocean will not fix its fear of being naked. Similarly, your employee-mother-of-two is going to value flexibility and work-life-balance a whole lot more than a 22-year-old employee fresh out of college.

This year resolve to learn what makes each of your employees unique. Resolve not to treat your employees as fungible commodities, but as special assets, each with his of her own talents and concerns. Recognizing each employee’s individuality will result in a more engaged workforce, which, in turn, will repay you with happier, more productive, and more loyal employees.

SpongeBob SquarePants, employment law professor

On a cold, snowy night in the suburbs of Cleveland, what is there to do besides snuggle on the couch with your 5-year-old son to watch the world premier of SpongeBob, You’re Fired? That’s exactly what Donovan and I did last night.

Who knew that such high art would provide the inspiration for today’s post?

The story begins with Mr. Krabs firing SpongeBob from his fry-cook job at The Krusty Krab to save a whole five cents by not paying his wage. Minimum wage be damned, SpongeBob offers to work for free to keep his job. Amazingly, the historically cheap Krabs turns him down, telling SpongeBob that he already looked into it, and it’s illegal to let employees work for free.

Bravo to Eugene Krabs for bringing the plight of the unpaid intern to the forefront of pop culture. Unless you meet the very limited test for an unpaid intern, if you have employees, you must pay them. Employees are not allowed to volunteer their time or work for free.

Lessons from Children’s Lit, part 3: Knuffle Bunny

Lately, my son and I have been reading Mo Willems’ Knuffle Bunny, a lot.

Knuffle Bunny tells the story of Trixie, who loses her stuffed bunny (and prized possession) during a trip to the laundromat with her Daddy. When she discovers her loss, she tries to tell her Daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny. I don’t want to spoil the end for anyone, but suffice it to say that when we finish the book, my little guy looks up at me as says, “She’s so happy.”

What lessons can employers take away from this “cautionary tale”?

1. There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her Daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned into designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and don’t retaliate.
   


2. Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s Daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A half-assed investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

More lessons from children’s lit: Dr. Seuss

As either my wife or I do every night, our daughter was put to bed last night with a book (or four). On the list last night was one of my all time favorites, Green Eggs & Ham. As I was reading I got to thinking that given the adult themes Dr. Seuss weaved into his books, there must be some lessons for employers to take from his works. I came up with the following:

Horton Hears a Who teaches that employers should not ignore complaints by employees. If an employee raises a concern about harassment, it is best for the company to take the complaint seriously, investigate, and take whatever corrective action, if any, is necessary. It is far better to investigate and conclude that nothing is there than to ignore the complaint and have it blossom into a lawsuit.

And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first children’s book, is about a boy who dreams up a wild story to tell his father when he gets some from a walk down Mulberry Street, but ultimately decides to simply tell him what he saw. For employers, the lesson is to deal openly and honestly with employees. Gossip runs rampant in every workplace, and it is better to quell rumors than to keep truths or even lie to employees. This lesson is especially relevant with the silent killer of card check union recognition potentially looming on the horizon.

The Cat in the Hat teaches that employers must know what it is the right time to cut bait with a troublesome employee.

Yertle the Turtle involves the king of the pond who commands the other turtles to stack themselves beneath him so that he can see, ignoring the turtles’ pleas for rest. The lesson for employers is to treat employees fairly.

The Sneetches, about shunning those who look different, teaches an important lesson about discrimination.

Finally, Fox in Sox teaches that sometimes you just have to have a little fun.

Lessons from Childrens' Lit

“Farmer Brown has a problem. His cows like to type. “

So starts Click Clack Moo, Cows That Type, my soon to be one year old daughter’s favorite book. In Click Clack Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed. 


2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution. 


3. Don’t Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).