Month: August 2015

August 25, 2015

By James B. Shrimp, Esq.

Many of you likely had the opportunity to review the New York Times expose on employment attitudes and conditions within Amazon. It makes a good summer beach read. The article paints a picture of aggressive and uncaring management, employer sanctioned back-biting among coworkers, long hours, few vacations and a lot of time away from family. White collar workers at other computer-based companies, such as Netflix, Facebook, Microsoft and Google are likely shocked. However, blue collar workers in America, that work one or two jobs, totaling 60+ hours per week away from their families and who don’t get the chance to take a vacation, are unmoved and not crying in their milk. The real question is whether there is anything abnormal or unlawful about what is going on at Amazon?

Is it Abnormal?

Before deciding to never work for Amazon or purchase any products from Amazon, it makes sense to take a moment to look at the article from a distance. The Times states that it interviewed approximately 100 individuals for the article and there are about 20 individuals identified in the article that have had issues with management. Let’s presume for sake of argument that the individuals the Times spoke to represent one-half of one percent of those employees at Amazon that have issues with management – that would mean a total of 4,000 employees have issues with Amazon management. Amazon has a total of 180,000 employees. Therefore, the 4,000 disgruntled employees equal 2.2 percent of Amazon’s workforce. With that said, would anyone be surprised if a workforce of fifty had one disgruntled worker, or a workforce of 1,000 had 22 disgruntled workers?

Admittedly, my statistics are unscientific and of course everyone wants to work at a place where there is no discord. But if there is discord caused by unfair treatment the employee has the freedom to leave and find another job. Importantly, the Times article does not say these employees are underpaid, in fact, the article infers the opposite. The next question is whether Amazon’s conduct is lawful.

Is Amazon’s Conduct Unlawful?

The Times interviewed local employment lawyers in the Seattle area (where Amazon is headquartered) and those lawyers stated that for the most part what Amazon is doing may be unfair, but it is not unlawful. There were some circumstances within the article regarding the application of Family and Medical Leave and the management-sanctioned employee versus employee “rat-out” line that concern me as a lawyer that represents employers. However, there was nothing in these employees’ stories that made me conclude with certainty that something unlawful is occurring.

Employees may think it's unfair, but there is nothing per se unlawful about requiring employees to work long hours and to judge those who don’t harshly. Employees may think it's unfair, but there is nothing per se unlawful about requiring employees to log-in during vacation. Employees may think it's unfair, but there is nothing per se unlawful about asking employees to report poor performance by coworkers (although in my opinion this is terrible for morale). Employees may think it's unfair, but there is nothing per se unlawful about memorizing 14 leadership principals and punishing those who don’t. As long as Amazon is complying with wage and hour and discrimination statutes the employee must decide whether to stay at Amazon or leave.

Conclusions

The Times positioned its article on Amazon as whether Amazon’s experiment to push white collar workers to the brink will succeed or fail. The Times, however, fails to recognize that there are plenty of industries and employers that push white collar workers just as far as Amazon’s employees. Many doctors, lawyers, stockbrokers and IT professionals work 60 plus hours per week, are often away from family and have limited vacations. Amazon’s “experiment” is limited to a specific sector of the American economy.

Amazon is a quasi-technology and retail company. The real question for Amazon is whether, as a technology company, it can push its white collar workers when other technology companies such as Google, Facebook and Microsoft have much more employee-friendly workplaces. For example, Netflix recently announced that it will provide one year of paid maternity leave (although Netflix has received flak for not extending that benefit to those employees in its DVD division).

If Amazon’s poor treatment of employees is real and widespread, Amazon will begin having issues hiring new employees. Jeff Bezos, CEO of Amazon, recognizes this market force, and in a response to Amazon’s employees, Mr. Bezos stated that Amazon would not tolerate the “shockingly callous management practices” described in the article. Mr. Bezos urged employees who knew of “stories like those reported” in the Times to contact him directly.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

August 21, 2015

By Richard C. Sokorai, Esq.

When an employee has to take a leave from his or her job because of a military deployment, the send-off can be very moving.  Sometimes the patriotic employer will even throw a thoughtful send-off party, express how the employee will be missed and assure the employee that his job will be there when the employee gets back.

However, as time goes by, the employer’s situation may change.  Deployments can sometimes take longer than expected.  Perhaps the employer will experience a downturn in business or otherwise re-organize.  Perhaps the employer will find what was intended to be a temporary replacement for the deployed soldier, but after time due to performance or continuity, wants to keep that employee in lieu of the deployed soldier.  Patriotism aside, the employer has a business to run and these circumstances can create difficult situations upon the employee’s return from the deployment.  How is the employer to handle these difficult issues?

These situations are covered by Federal law, specifically, the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Under USERRA, employees that are called up for Reserves or National Guard duty are considered a protected class, and can’t be discriminated against based upon their military service or obligation.  There are also very strict requirements that cover the re-employment of these individuals.

So, as an employer, what are your responsibilities to that employee?

For the most part (there are exceptions not covered in this article), employers are required to re-employ workers who have been honorably discharged or who’ve satisfactorily completed their military service in the Reserves or National Guard, as long as the employee requests reinstatement in a timely manner.

Even if you have a new employee that replaced the deployed employee, one that you may like better or who you may think does a better job, you have an obligation to re-employ the returning soldier, even at the expense of terminating the replacement employee.

For employees that suffer a disabling injury while on active duty, the employer is required to reasonably accommodate the returning employee and allow him or her to perform the duties of the job they would have had had they not been called up. If that job doesn’t exist, the employer must make every reasonable effort to find a job the employee can perform that is the nearest approximation to the previous position.

If there was a reduction in force while the employee was deployed, or the job was merely temporary, and the employee would have lost their job even if they had not been deployed, the organization doesn’t have to rehire the employee.  But understand that this decision may be closely scrutinized.

It is also important to understand that when you rehire your employee, you must treat them as if they have never left.  This means that any promotions, seniority or raises that they would have received had they not been deployed, must be afforded to them upon their return.

Lastly, depending on the length of the call-up, the employee may also be exempted from Pennsylvania’s “at-will” employment doctrine, meaning they may enjoy a period of time following their deployment where they can only be discharged “for cause.”

There certain procedural and technical requirements that apply and which may modify or eliminate some or all of the above requirements.  Close consultation with your attorney prior to making any such employment decisions will offer you significant protection in navigating this legal minefield.

Most American citizens agree that those that serve in the military are vitally important to our way of life, and therefore should be protected for the sacrifice they make. Most American employers are patriotic and support their military employees, but also have competing interests, such as the protection of their business, their families and duties to shareholders. USSERA is the framework that ensures the employer makes such employment decisions with the appropriate balance.

For more information feel free to contact Rich Sokorai at (610) 275-0700 or by email at rsokorai@highswartz.com.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

August 18, 2015

By James B. Shrimp, Esq.

When an employer investigates potential wrongdoing by an employee, there are a number of potential landmines. One is the issue of how to treat the employee during the internal investigation; it’s possible the treatment of the employee could lead to liability under various employment discrimination statutes. In a decision last week, the United States Third Circuit Court of Appeals provided clarity on one common aspect of that treatment: “suspension with pay.”

In the case Jones v. Southeastern Pennsylvania Transportation Authority the court was asked to determine for the first time whether a suspension with pay can be considered discrimination under Title VII. The Third Court held that, absent unusual circumstances, a suspension with pay cannot support a discrimination or hostile environment claim. The Third Circuit did not decide whether a suspension with pay could support a retaliation claim.

The details of this case

The plaintiff in Jones began working as an administrative assistant with SEPTA in 2001. In 2010, Jones’ supervisor suspended her with full pay after discovering apparent fraud in her timesheets, and referred the investigation to SEPTA’s office of inspector general. Within days, the plaintiff filed a complaint against the supervisor alleging that the supervisor sexually harassed and retaliated against her. She had never filed any complainst against him before.

After a nearly three month investigation, SEPTA’s office of inspector general concluded that the plaintiff had in fact submitted fraudulent timesheets. SEPTA suspended her without pay, and formally terminated her approximately two months later. In March 2011, the plaintiff filed a complaint with the Pennsylvania Human Relations Commission and thereafter filed an action in Federal court.

Here’s what employers need to consider

Substantive Discrimination – In order to establish a substantive discrimination claim, a plaintiff must prove that she suffered an “adverse employment action.” The Third Circuit has described an adverse employment action as “an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Based on this definition and a review of decisions from other Federal Circuit Courts of Appeal, the Third Circuit held that “a paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” To circumvent this bright line rule, a plaintiff must prove that the suspension with pay is somehow “atypical.”

In Jones, the Third Circuit held that there was nothing “atypical” about the plaintiff’s suspension with pay. Notably, the plaintiff’s suspension with pay lasted three months, and therefore it can be concluded that an extended period of suspension with pay does not create an atypical situation.

Hostile Environment – In hostile environment cases, even if a plaintiff establishes severe and pervasive hostile conduct, the employer can defend against such a claim if the plaintiff suffered no “tangible employment action.” The Third Circuit held that the suspension with pay is not a tangible employment action, which is akin to adverse employment action, and therefore the plaintiff in Jones could not bring a hostile environment claim.

What it means for employers

The Third Circuit has provided clarity for employers in Pennsylvania, New Jersey and Delaware on when, or if, to incorporate a suspension with pay into a progressive discipline policy. In Jones, the court declared that a suspension with pay cannot support a discrimination or hostile environment claim unless it is atypical. To avoid a finding of an atypical suspension with pay, I recommend that an employer specifically incorporate a suspension with pay into its progressive discipline policy and that suspension with pay be neutrally applied among protected classes.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.