As ENDA Lingers in Congress, a MDV in Maine

Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about.

And this one really does not even qualify very high on an unusual scale, except that it does reflect how often employers have to battle human nature.

The facts leading up to a $1,047,000 verdict from a Maine jury for Edward Russell are apparently these: Russell had filled in at least four times as General Manager for Express Jet at the Portland airport when the position was vacant. When he applied for the position on a permanent basis and did not get it, he sued arguing it was because he was gay.

So far, straight enough (no pun intended). The complicating factor is that in 2003-04 there had been a complaint from three female employees who had unsuccessfully applied for an open supervisory position. At the time, all of the Express Jet managers at the facility were gay men. The women complained that the gay general manager would only hire other gay men.

The theory of the case for the plaintiff -- the company did not want another gay man in the position. Toss in a few untoward comments and it all ends up to $1 million dollar plus verdict, which as the article notes will be reduced by some amount due to damage caps. See, Man wins gay discrimination suit, from the Portland Press Herald.

Discrimination is of course an individual act, and if his sexual orientation was the reason for his not being promoted, Russell clearly was entitled to recover.

But before one gets all righteous about how the wrong the company was, it is easy to imagine a circumstance, where an employer could, justifiably or not, be saying to themselves -- you're damned if you do, and you're damned if you don't.

I said my job was interesting, I never said it was easy.  Each piece of legislation, valid as it may be, just makes it more so.

When "Sabotgage" Becomes Illegal

I continue to see a number of articles about the need for anti-bullying legislation, much to my dismay. When there is an article about it in the weekly Sunday supplement that's in my local newspaper, you know the movement is gaining traction. See Workplace Bullying: Do We Need a Law?

At least the article had the good sense to include this quote from Victoria Pynchon, who blogs regularly at  Settle It Now Negotiation Blog:

Making a federal or state case over the day-to-day management of any workforce is just plain nuts. At best, it’s a jackhammer solution to an Emily Post problem. At worst, it’s a new scheme for extortion.

What prompted the chain of thought that led to this post was this article from the Official Wire,  California Pizza Kitchen Sued By Former Employee For Harassment And Sabotage Due To Sexual Orientation.

The connection to anti-bullying legislation? Sabotage at work is one of those ills that the statute is designed to protect against. A brochure supporting the Healthy Workplace Bill, includes this definition of bullying:

Verbal abuse, threats, humiliation, intimidation, work interference or sabotage. All of which prevent work from getting done and harm employee health. [emphasis added]

And what kind of allegations might we see in such "sabotage" cases?

Well according to the harassed pizza employee Kenneth Abramowitz it was a homophobic kitchen manager who:

allegedly sabotaged Aramowitz by delaying his food orders, when Abramowitz tried to expedite his customer’s food orders Aguilar would degrade Abramowitz’s homosexuality with verbal and physical slanders.

While I don't want to minimize the problem, and here the verbal abuse might make this a case that would seem actionable, I have griped about slow food service too many times myself to think that it should give rise to a cause of action.

I don't think there is a disagreement that the workplace should be more civil, but adding another layer of legislation is surely not the only way to get there.

He keeps saying and saying and saying .....

Has It Really Been 8 Years?

Since I posted my first jot here? For Lack of a Green Card

Apparently so.

Thanks for all who stop by.

Invest in Museum Risk Management - Don't Always Count on Someone Being There When Disaster Strikes

Back in June 2008 flooding damaged areas of Iowa. One place hit by the rising waters was the University of Iowa's (UI) art museum. The good news is that the Figge Museum in Davenport was able to house and protect some of UI's artwork after the flood. Just as when Hurricane Katrina hit Louisiana and other nearby states, several art museums came to help out institutions affected by the disaster. However, long-term help cannot always be counted on. In UI's situation, Lloyd's of London will not insure a new museum building for UI if they construct it in the same spot. And the Federal Emergency Management Agency(FEMA) has just denied UI's request for funds to help build a new museum. The lesson is that an investment in risk planning can help a cultural institution mitigate or prevent problems later.

Etape Diary Thursday 15th July

A morning spent swapping in larger sprockets and packing the bike box, then the train to St Pancras. I still miss the demise of the International Terminal at Waterloo as it takes an extra hour to get across London via Richmond and Hammersmith so as to avoid stairs to St Pancras. However the compensation came in the form of the restaurant at St Pancras where I met a work colleague for a late lunch to discuss, amongst other things, how to take forward our sports law expertise within 2 Temple Gardens. My contribution is some knowledge of cycling!

That discussed, I moved through security, my bag was comprehensively swabbed for explosives and I set off on the fast journey to Paris. Not much more than 10 minutes to get to the M25 which is impressive but almost all in tunnels. I celebrated being underneath the Channel with an expresso in the buffet. In France my Garmin GPS recorded 190 mph.
Once in Paris, the presence of bikebags gave etappers away. Angus and I struggled together jointly by hot metro to Austerlitz. There was time for a beer and a snack before we were joined by Alex, who I know from 4th cat races at Hillingdon. At around 11pm we boarded the sleeper, where I was berthed with another English etapper, Paul – like Lance Armstrong he has come over to cycling from being a triathelete. There was an area for bikes which we were able to make use of once a pilgrim to Lourdes, who appeared to be intent on spending the night curled up in the luggage area, had been persuaded back to a seat. My bed was comfortable but we seemed to be making haste through the countryside in wheel shaking jerks which I did not find conducive to a good night’s sleep. In the middle of the night peace descended as we stopped up somewhere for a long time, presumably while the train to Biarritz was being detached.

There is no doubt that the French do trains better then we manage.

Operation Andromeda - Carabinieri Cultural Heritage Protection Command Press Release

CONDENSED PRESS STATEMENT (TRANSLATED FROM THE ITALIAN)
Unedited original available at
www.carabinieri.it/Internet/Cittadino/Informazioni/ComunicatiStampa/2010/Luglio/20100716_100000.htm

On July 16, 2010, the Carabinieri Cultural Heritage Protection Command presented to the press ... three hundred thirty seven exceptional archaeological finds, from Lazio, Puglia, Sardinia and Magna Graecia, dating between eighth century BC and fourth century AD, and returned from Geneva, Switzerland on June 25, 2010.

Among the many outstanding heritage items are ... loutrophoros, marble statues depicting the goddess Venus, Apulian and Attic volute craters, craters mask Canosa, kylix Chalkidiki, bronzes, frescoes from Pompeii, a basket and two nuraghic warriors, whose value is determined on the illicit market based on their size in centimeters (about ten thousand euros per centimeter).

The total asset value of the works exceeds fifteen million euros. The exhibits were seized earlier this year by the Swiss authorities and by the Carabinieri, as a result of an investigation commonly known as "Andromeda" in the free port of Geneva, where they were stored by an art dealer and a Japanese Swiss businessman ....

...

Financial Reform Passes - Major Whistleblowing Changes as Well

Thanks to Jacob Zuckerman at the Employment Law Group for his on the spot reporting about the new whistleblowing provisions contained in the major financial bill that was passed earlier today. See Dodd-Frank Bill Provides Robust Whistleblower Protection, including a link to a download of all the whistleblower provisions contained in the legislation.

Among the interesting provisions:

• A reward to whistleblowers who provide information to the SEC which results in monetary sanctions exceeding $1 million.  There are lots of caveats and discretion given to the SEC, but if the award is below 30% of the amount recouped, the individual can file an appeal to a federal court of appeals.
• There is also protection for retaliation against anyone who provides information in accordance with this incentive program.
• There is a new Whistleblower statute for Financial Services employees which focuses on conduct related to consumer financial product or services, but has quite a broad scope of coverage.
• A reward to whistleblowers who provide information to the Commodity Futures Trading Commissions, with similar provisions relating to an appeal if the individual does not like the award they received, although it differs from the similar statute under the SEC in that it does not have a 30% standard that must be met before an appeal is filed.
• Closes a possible loophole in Sarbanes Oxley coverage by making it clear that subsidiaries of publicly traded companies are included if their results are included in the consolidated financial statements. The statute of limitations doubles to 180 days and precludes SOX claims from being covered by mandatory arbitration agreements.
• There is also a strengthening of the False Claims Act whistleblowers retaliation provision and sets the statute of limitations at three years.

Given that it takes a number of years for employment law legislation to work its way into the framework of  the law of the workplace, it may be a few years before the impact of today's legislative action is really determined.  And because they are statutory and industry specific, it may even take longer for these particularl statutes.

But it is a pretty impressive body of new law and those in the affected industries would do well to take note.