A few days ago I happened upon an article about Littler Mendelson, P.C.  They are a large employment law defense firm and have offices in every major metropolitan area of California.  I would bet that if I looked at all of the cases our firm has handled over the years, Littler is the firm we are most often pitted against.

Except for a few bad experiences (every company has some bad apples and law firms are no exception), I have found most opposing counsel at Littler to be professional and relatively pleasant to deal with under the circumstances.

You will not often hear me singing the "enemy's" praises, but Littler recently received a perfect score (100) on the 2009 Corporate Equality Index.  This rating is given each year by the Human Rights Campaign Foundation, which is an advocacy group for gay, lesbian, bisexual and transgendered ("GLBT") Americans.

I find it refreshing that a law firm dedicated to defending employers who have been accused of violating their employees' rights has taken the steps necessary to discourage discrimination "at home".

Employment defense counsel are always "talking the talk" to me about how their clients are committed to diversity, non-discrimination, etc. and would have "never" done what we are accusing them doing.

It looks as though Littler actually "walks the walk" (even if their clients do not always follow their example).  Congrats on a job well done.

Ok, so this topic has been blogged to death by not only me, but the blawgosphere as a whole. However, I just received this update to the story.

Sam Zell, the head of Tribune Co., met with his employees/journalists last week at the Orlando Sentinel, one of the newspapers covered by his idiotic/inspiring (depending on which side you are on in the debate) new employee handbook.

One employee asked Mr. Zell about the direction the newspaper was heading and asked some follow up questions when she felt like he did not answer her question directly. At the end of the exchange, Mr. Zell simply said: "F*ck you" to the employee and left it at that. Unfortunately for Mr. Zell, a video of the incident quickly made its way onto YouTube.

I would direct Mr. Zell to the following paragraph in the handbook he so proudly introduced just last month:

8. QUESTION AUTHORITY. ...Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

Apparently Mr. Zell isn't very concerned about practicing what he preaches. When "feel good" handbook policies like this are not followed by management, a culture of cynicism and hypocrisy emerges in most companies.

This is probably even more true in the case where the person who created the policy and widely publicized its merits, violates its own terms just a few weeks later just as publicly.

Mr. Zell has stated publicly that he tried to contact this employee twice and not been able to get in touch with her. Also, she has refused to comment about the incident to the media.

Sounds to me like she, and likely other Tribune Co. employees, have learned their lesson about talking out of turn and not to "question authority".

Well, the California Supreme Court finally released its opinion in Ross v. Ragingwire Telecommunications, Inc., S138130, today and I have to say I am disappointed with the opinion, although I think the dissenting opinion was completely on the mark.

The Decision

The Court decided that employers can terminate employees in California who use medical marijuana with a doctor's prescription for a valid medical reason and not be held liable for doing so under state employment discrimination laws.

The majority spent almost all of their opinion talking about how the Compassionate Use Act of 1996 (the referendum that decriminalized medical marijuana under California law) does not explicitly say employers are prohibited from terminating an employee for using medical marijuana at home.

However, the majority seems to have forgotten that the case was brought under California's Fair Employment and Housing Act ("FEHA") and not the Compassionate Use Act ("CUA"), seemingly concluding that because the CUA was not violated, neither was the FEHA.

The only reason that the CUA has any application here at all is by virtue of the fact that it is the reason that the plaintiff can say he was not breaking state law. Arguably, if state law says something is illegal, then state anti-discrimination laws cannot be held to protect an employee who breaks it. However, the fact that the plaintiff broke no California law should mean that the legality or illegality of the conduct is a non-issue.

FEHA Disability Discrimination Analysis

In California, employers are required to "reasonably accommodate" individuals with disabilities, which basically means that they need to work with the employee and their doctor to determine what the employee needs to be able to do their job and treat their disability. In Ragingwire, the employee simply wanted his employer to allow him to use medical marijuana at home during non-work hours.

The employer generally must allow any accommodation that does not cause it to suffer an "undue hardship". In order avoid liability for refusing a particular accommodation, the employer must demonstrate what sort of undue hardship it would suffer.

Here, the Defendant pointed to virtually no undue hardship it would suffer by letting Ross use his medical marijuana at home during non-work hours. Instead, it pointed to "red herrings" (which the majority readily adopted as some of its justifications) such as:

• We cannot be forced to allow him to use drugs at work--The Court admits that Ross explicitly stated he was not asking for the right to use medical marijuana at work.
• We cannot be held responsible for him coming to work under the influence--Again, Ross was not asking to be allowed to be under the influence at work. This is exactly the same as if an employee had an Oxycotin or Vicodin prescription and could potentially show up at work under the influence of their medication.
• We cannot condone our employees violating the law--If you let your employees bet on sports such as running football pools, this is essentially the same thing. Under federal law simple possession of a small quantity of marijuana is a misdemeanor punishable with a maximum $1,000 fine and/or a year in jail, whereas gambling in California is punishable by a $1,000 fine and/or six months in jail. However, this argument is irrelevant where an employee is only using medical marijuana at home during non-work hours because an employee breaking a law on their own time does not create an undue hardship.

None of these arguments proves that the employer would suffer an undue hardship under these circumstances. Under the FEHA, a claim of hardship generally must be based on either (1) the fact that the accommodation would cost the employer too much to implement, or (2) it would be too inconvenient to implement the accommodation. (See Cal. Gov. 12940(m).)

The majority in this case simply glosses over this whole analysis (which is really the only question they needed to answer here) by conclusively stating "The FEHA does not require employers to accommodate the use of illegal drugs" with virtually no support for that statement. (p. 5)

The majority tries to support this statement by going into a long analysis of cases where it has held that (1) employees can be drug tested under certain circumstances, and (2) employees can be terminated for "abusing" drugs that have no "legitimate medical explanation". Of course, neither of these arguments really has any application to this case, but I guess it sounds good.

Me and the Dissenters Make 3

The dissenting opinion, written by Justice Kennard (who was joined by one other justice to make the decision 5-2) gets the analysis right and reaches the right conclusions, in my opinion. Of course, my earlier post about this case makes his same points, but because we both seem to be in the minority it will probably be quite some time before our opinions are adopted.

It will, however, be interesting to see what the rest of the blawgosphere things about this decision.

Well, my post about the Los Angeles Times article on their new employee handbook seems to have set off (or at least contributed to) a firestorm throughout the web. Some of the reaction seems off-the-mark, though.

Comments: The Good, The Bad and the Ugly

The overwhelming majority of mail I received is in agreement with my comments on the handbook, but I also received the most hate mail for any post I have made in the past year. For example:

I’d like to see the legal system so jammed with lawsuits and uncollectible (sic) judgments that it fails altogether. Maybe then we could get out from under the thumb of the scum sucking lawyer filth who rule our lives. I support the kind of tort reform that would bankrupt 95% or more of attorneys.

However, I did actually receive some civil and thoughtful disagreement, most of which can be summed up by an anonymous comment that reads:

[T]hat "gobbledygook" that can be read and understood by 99% of the population is better than "gobbledygook" that is incomprehensible to 80% of the population. A legal system that is incomprehensible to the vast majority of those to whom it is supposed to apply is an incredibly bad system.

I agree with the second sentence of this comment, but to me the first sentence refers to a non-existent problem with employee handbooks. Generally these handbooks contain little (if any) legalese at all, because that would simply defeat their purpose.¹

Good Handbooks Have NO Gobbledygook

A post by Andrew Mitton at his new blog Legal Frontier that discusses the following provision as an example:

5.1 You may want to think twice before you enter into an intimate relationship with a co-worker. When you start, it might seem like a good idea. It's when you stop, or the wrong people find out (and they will) that you could discover that perhaps it wasn't.

While I did not originally comment on this provision, Daniel Schwartz at the Connecticut Employment Law Blog (an employment law defense attorney) has expressed concern over this provision. Mr. Mitton, on the other hand, praises the Tribune's provision for not having "wherefores, the herebys, and the all-encompassing list" of rules against behavior.

However, under the Tribune's provision, the company is refusing to take the position on the issue and the policy has no "teeth". If they want to terminate an employee for violating it, all the company can say is "we told him he should 'think twice'", when they should have made it a rule.

You might wonder to yourself "Ok, fancy lawyer guy, how would YOU have written it?" Alright, I will give it a shot:

5.1 The company discourages intimate relationships between co-workers and prohibits such relationships between supervisors and subordinates.

This is a clear statement of policy that the company can point to when an employee refuses to follow the rules and must be terminated. It contains no legalese and, in my opinion, CAN be understood by 99% of the population.

The Tribune's provision also does not prohibit relationships between supervisors and their subordinates, which are NEVER a good idea to allow. When the relationship sours, it can lead to sexual harassment suits and even if it does not go bad, employee morale can plummet when they think the subordinate is getting favorable treatment from the supervisor.

Of course, it is possible that the Tribune does not wish to prohibit relationships between supervisors and subordinates. It is also possible that instead of discouraging co-workers from having intimate relationships with each other, they simply want to make a public service announcement suggesting they "think twice". If so, then I suppose this provision accomplishes its goals.

The Reality of Typical Employee Handbooks

The public might be surprised to know that even most lawyers are opposed to legalese and overly complicated language (myself included). In fact, most law students today are taught not to write in legalese and to use plain English. Many jurisdictions (including the federal courts) are completely rewriting their rules to remove legalese and make them more clear for laypeople.

I have probably read close to 1,000 employee handbooks in my career and I do not recall ever seeing one written in legalese using "wherefore's" or "hereby's". In fact, using legalese in an employee handbook may even be as bad an idea as the Tribune's approach.

The main purpose of handbooks is to put employees on notice of what is expected of them. In litigation, the employer would have a tough time justifying termination of an employee for violation of a handbook provision so complicated the employee could not have been expected to understand it.

While I have seen many handbooks that are poorly written and difficult to understand, this is almost always because the employer did not consult a lawyer about it not because they did.

An article in Thursday's Los Angeles Times discusses their own parent company, Tribune Co.'s new employee handbook that was introduced by their CEO, Sam Zell, via a recent e-mail to employees.

This caught my eye because it is not every day that a company publicly releases or discusses their employee handbook. In fact, many handbooks actually state that its pages are the employer's property and must be returned at the end of employment.

The (Bad) Idea

According to Zell, the handbook outlines "our company's new core values" and "reminds us not to take ourselves too seriously, and to have fun." Unfortunately for the Los Angeles Times, legal documents (which are almost always referred to in employment law cases by one or both sides) do serve a legal function.

Although the handbook has the requisite disclaimer stating that it is not a contract, its provisions may be modified at any time, etc. and contains a footnote stating "Of course, Tribune follows...state laws," this will not let them off the hook in future litigation.

In provision 18.1.4 of the new handbook, the Tribune points out that:

It's good judgment not to put in writing what you don't want printed on the front page of a newspaper. Or posted on a website...

The company probably should have taken its own advice and left some of these provisions out of their official employee handbook, but it appears they did not consult an attorney before releasing it, so now they are stuck with it.

Use of Employee Handbooks in Litigation

Employee handbooks are used in litigation to demonstrate an employer's mindset, attitudes or as foreshadowing conduct at issue in a lawsuit.

For example, a handbook might say "you will be terminated immediately if you cannot satisfactorily perform your job due to a medical condition" (from an actual handbook I have seen in a case).

This is extremely good evidence in a disability discrimination or family medical leave case because it can be used as proof that the employer has already stated its intention not to comply with the law.

Examples from the Tribune Handbook

Here are some examples from the recently implemented handbook that point out that likely will cause its outside employment counsel to drive their head repeatedly into the nearest brick wall.

Harassment is not "Harassment"

From section 4, "Harassment Policy (Sexual & Otherwise), of part 3, "Employee Manual" of the handbook:

4.1 Working at Tribune means accepting a creative, quirky,...odd, humorous,...opinionated and sometimes annoying atmosphere.

4.2 Working at Tribune means accepting that sometimes you might hear a word that you...might not use...experience an attitude you don't share...[or] hear a joke that you might not consider funny.

4.3 This should be understood, should not be a surprise and is not considered harassment.

4.4 Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity. (emphasis added)

Provision 4.4 actually refers to the relatively uncommon "quid pro quo" sexual harassment, which includes "sleep with me or you are fired"-type conduct.

The vastly more prevalent form of sexual harassment is "hostile work environment" harassment, which occurs when a sexually-charged atmosphere is created, such as frequent, unwelcome sexual propositions towards an employee.

In fact, hostile work environment claims include situations where the conduct is not even directed at the plaintiff, such as other employees' constant viewing of pornography in close proximity to her or constant sexual comments about other employees to or within hearing distance of her.

Provisions 4.1-4.2 could easily be read to encompass a hostile work environment and 4.3's bold statement that in the company's view it is simply "not considered harassment". It does not take much work for a plaintiff's attorney to argue that this provision basically says that the company does not consider hostile work environments to be a form of harassment.

If an employee complains about such conduct and is ignored or retaliated against, provision 4.3 will be very damaging to the employer's case because its state position is that there is nothing wrong with the conduct in the first place.

Managers Love it When You Question Their Authority

8. QUESTION AUTHORITY. ...Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

In theory, this might seem to be a "breath of fresh air" and a great company-wide "open door policy". However, in practice this policy is likely bad for both employees and the company itself.

For the company, it is basically a promise that they will not take any action against an employee for complaining, no matter what it is about or how much they complaint. Every workplace has an employee who just loves to complain about anything and everything constantly. This provision both encourages such behavior and bars management from doing anything about it.

On the other side of the issue, I advise employees every day to be careful with taking such open-door policies too literally. It is commendable for a company to have a well-intentioned policy like this in place, but it has to be (and rarely is) followed by lower-level managers who usually do not like their orders or policies being questioned. In only a rare case will the employee earn any "respect" for complaining.

If an employee takes advantage of a policy like this, they should do so in writing and document both their complaints and their supervisor's reactions. That way, if retaliation does occur then there is a paper trail to prove it.

Alcoholism: Only Disease You Can Get in Trouble for Having¹

7.1 If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated...

Alcoholics and drug addicts are considered to be disabled under California law and an employer terminates them for it at their own risk. In many circumstances, the Americans with Disabilities Act also applies to these situations.

In fact, under California Labor Code § 1025-1028, employers are required to reasonably accommodate these employees by allowing them to attend an alcohol or drug rehabilitation program if they have a substance abuse problem.

These types of disability discrimination claims are often difficult to prove and an uphill battle to establish that the disability (and not its side effects along, e.g. tardiness, poor performance) is the reason for termination.

However, a handbook provision like this could be the piece of evidence that wins the case, since this is singled out as a specific reason for terminating a poor performer. In other words, it does not say "If you have a mental breakdown and fail to perform...," so an argument that the difference is the specific disability itself is the reason gains a great deal of credibility.

"The company intends to actively discriminate..."

2.4 The company intends to actively discriminate based on job performance, ability and attitude.

2.5 Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability, or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited.

There are a couple of issues with this provision that merit discussion, both of which can turn out bad for the company.

First, these paragraphs essentially promise that they will not terminate or otherwise discriminate based on any reason not related to performance, ability or attitude. Therefore, budget cuts, general "personality conflicts" with co-workers or management, or simply their manager's not liking them are not valid reasons to terminate or take any other action against an employee.

Second, while singling out someone with the "inability to tell a joke, the occasional poor wardrobe choice or bad hair day" as "unprotected" is clearly intended as a light-hearted joke, it could also be applied to that "weird" janitor/mailroom person/manual laborer who works for the company. I have represented some of these employees who are terminated for their social awkwardness which is sometimes a symptom of a disability such as mild autism.

While this may seem far-fetched, Tribune Co. has tens of thousands of employees and such an issue is bound to arise at some point in the next several years.

That's What Employment Law Attorneys Are For

Apparently the handbook was actually written by Randy Michaels, Tribune's CEO for Interactive Broadcasting. He has said he believe that "The more policies you have, the more opportunities there are for someone who is very unhappy to sue." However, with the right disclaimers in place, breaking a promise in an employee handbook itself provides no basis to sue.

Although our firm only practices employee rights law and does not advise employers or draft employee handbooks, this is most certainly the kind of thing that makes management-side employment law attorneys crucial in preventing lawsuits and other problems before they occur.

Mr. Michaels seems all too eager to say he is "amazed and amused at what lawyers get businesspeople to do," suggesting that other companies who pay lawyers to write (as the LA Time piece puts it) "the mind-numbing, lawyer gobbledygook in most corporate manuals" are being swindled or misled. In fact, that "gobbledygook" is often instrumental in successfully defeating many lawsuits by employees.

Once the Tribune faces its first lawsuit where this handbook is used as evidence against them, they will hopefully realize that Mr. Michaels has actually created more legal liabilities than he has prevented.

At that point, I will feel sorry for the attorney who has to defend a company that believes they will "have fewer legal problems with plain English and common sense than with pages and pages of rules". Essentially, that their own gobbledygook is better than any gobbledygook a lawyer could have written for them.

Good luck with that.

In this third and final installment in our series on Ron Paul's comments about employee rights in his book Freedom Under Siege, we examine his views on civil rights legislation in general, which can be found in several sections of his book, but is best summed up with the following quote found on page 39:

[P]eople have the right to discriminate...in choosing...an employee.... Civil rights legislation of the past thirty years has totally ignored this principle. Many 'do-gooders,' of course, argue from the 'moral high ground' for their version of equal rights, knowing that they can play the sympathies and the guilt of many Americans.

It appears Mr. Paul is not only against protection of women in the face of discrimination, but virtually all protected minorities and classifications, including race, religion, and age.

What else is there for me to say about Mr. Paul's views other than I disagree completely and as someone who thinks of himself as a "do-gooder," they offend me. I would think the majority of independent voters tend to agree with me, but recent polls showing independent support for him seem to tell a different story.

This will likely be my last foray into political commentary for this election cycle. It has been an eye-opening experience and at least solidified who I will not be supporting in the upcoming elections.

This is the second in our series of posts based on Presidential Candidate Ron Paul's musings on employee rights in his book Freedom Under Siege. This installment's "Paulism" can be found on page 17 of the book:

The idea that the social do-gooder can legislate a system which forces industry to pay men and women by comparable worth standards boggles the mind...The concept of equal pay for equal work is...an impossible task.... By what right does the government assume the power to tell an airline it must hire unattractive women if it does not want to?

Mr. Paul's opinion that only attractive women should work as flight attendants is amusing, but it does bring up some employment law issues, both explicitly and implicitly.

Gender Identity Discrimination

As a general principle, it is not illegal in California to choose an attractive job candidate over a candidate who is equally qualified but unattractive, as long as this is the actual reason for the decision.

However, issues such as the person being unattractive because of a disability or the person doing the hiring would simply rather work with the less-qualified attractive woman than the highly qualified male applicant, discrimination claims become more of an option.

Another issue this brings up is known as "gender identity discrimination". Essentially, this refers to an employer refusing to hire or firing someone for not "acting like" their gender. For example, a woman who is not feminine enough is rejected for employment by Victoria's Secret or a man who acts too effeminate is terminated from his job as an auto mechanic.

This theory of gender discrimination is still fairly rare, but is much more common than it was even five years ago, especially concerning transgendered employees. The crux of the legal argument is that because adverse employment actions are taken against these employees because they are not conforming to the stereotypical behavior and appearance of their gender, these actions are taken because of their gender, thus making it gender discrimination.

There have been a few cases where employees have made arguments similar to Mr. Paul's hypothetical, but usually not successfully. For example, the 9th Circuit Court of Appeals recently ruled that female casino employees can be required to wear makeup even when their male counterparts are not.

Equal Pay for Equal Work

The undercurrent of Mr. Paul's quote, however, is its reference to "equal pay for equal work." This refers to the Equal Pay Act of 1963 ("EPA"), which is part of the Fair Labor Standards Act and says that, all other things being equal, women must be paid as much as their male counterparts in a company (and vice-versa).

Under Mr. Paul's view, an employer should be free to pay each employee whatever they wish for whatever reason they wish. While this makes sense when all employees are on equal footing when competing for jobs, it ignores the realities of the United States' (and the rest of the world's) ingrained discriminatory attitudes towards women.

The EPA was passed to curtail employer behavior based on outdated stereotypes of women. For example, paying women less because of an employers' belief that:

• Women belong in the home and should be discouraged from entering the workplace;
• Women will eventually quit once they "find" a husband;
• Women will eventually leave to have babies; or
• Women are inherently less qualified or less intelligent than men.

Study after study has shown that women are still paid less than men for doing the exact same job. The EPA was passed in an attempt to remedy this and since its passage the disparity in pay has substantially decreased.

However, when Mr. Paul wrote his book in 1987 the gap was much larger than it is today and blatant discrimination against women in the workplace was much more prevalent.

Conclusion

Apparently Ron Paul thinks bias against women is a perfectly good reason to make pay-level decisions. While he is entitled to his opinion, I am unable to understand how his supporters are more than 50% female.

At first I thought this was similar to his prior racist and homophobic rants, which are somewhat buried in history and do not get much coverage. However, this book is actually heralded by his supporters, including rave reviews by women.

I guess I just don't get it.

I have tried to tune out most of the political primary hysteria because I (1) made up my mind about who I would be supporting in the election long ago and (2) I live in California, so my opinion is not really that important at this stage.

Today I happened to stumble across some of Ron Paul's comments in Freedom Under Siege, a book (the link is to a 160 page pdf file of it) he published in 1987. Although I have heard in the past about racist, homophobic, intolerant, etc. comments he has made, I had not heard about some of the things he says about employee rights in this book.

I am neither a proponent of Ron Paul, nor am I an active opponent of his. I believe he has many great ideas, but like most people with a few great radical ideas, he also has a few radical bad ideas. These will be chronicled in a series of posts over the next few days. Originally this was going to be just one post, but the more I read this book, the more material I came up with.

"So-Called Harassment"

The first passage that jumped out at me is on page 17 of the book where he states the following about employees who are sexually harassed by their employers:

Why don't they quit once the so-called harassment starts? ...[H]ow can the harassee escape [any] responsibility for the problem? Seeking protection under civil rights legislation is hardly acceptable...pressure and submission is hardly an example of a violation of one's employment rights.

Mr. Paul apparently believes that employers should be free to demand sexual favors from their employees and then terminate them if they are refused. Clearly this viewpoint is offensive to women and is not going to be adopted by anyone other than the far-far-far-right wing of American politics, but it also defies logic from a pure policy standpoint.

Why Don't they Just Quit?

In Ron Paul's view, an employee who is sexually harassed should just walk down the street and get a different job. Apparently the employer's "punishment" is that the employee quits.

However, this ignores the reality that employees cannot just start a new job right away without suffering any damages. What if that employee left a good job to work for this new employer? What if the employee moved to take this job and it is the only company where she can practice in her field (e.g. the only hospital or school in the area)?

"Hardly" a Violation of Employment Rights

Take this hypothetical of a single mother who works hard at her job as a secretary to put food on the table for her children. She has a disabled child who needs frequent medical care and had to wait a full year to get coverage under her employer's health plan. She has received steady raises in her pay to where she finally has enough money coming in to pay her bills and feed her family.

One day, the owner of the company asks her into his office, closes the door behind her and asks her to have sex with him on the couch. She refuses and he says if she is not undressed and on the couch in thirty seconds she is fired.

Current Law

Under current law in both California and the rest of the United States, the employee could simply refuse her employer's advances and sue for lost wages and benefits (until she gets another, comparable position), emotional distress, punitive damages, costs and attorney's fees.

Not only does this serve to compensate an employee who is forced to go through such an ordeal, but it also acts as a deterrent because employers would expect to be sued if this happened.

Ron Paul's View

Apparently Ron Paul believes that in this example the employee has the "right" to quit on the spot and no longer provide services to the employer. However, the employer also has the "right" to demand sex from his employees and terminate them if they do not comply.

The employee is forced to choose between food, shelter and healthcare for her children and being degraded at the hands of her employer. At the instant she makes her decision the "right" decision is far from clear.

This type of scene already plays out far too often in the United States, but imagine if employers had absolutely no liability for taking these sorts of actions.

Conclusion

Sexual harassment laws were passed in large part to deal with the extreme difference in power between employers and their employees.

Employers can make their employees do virtually anything they want within the boundaries of the law, but society has decided that employees should not be forced to choose between being a sex slave and surviving financially or professionally.

Does Ron Paul seriously believe that employees should be forced to make this decision and employers who force them to should not suffer any consequences? If so, do the 10% of people voting for him the primaries agree with him on this?

Let me first say that I rarely disagree with decisions by California state or federal appellate courts (at least those I am not personally involved in and therefore biased towards). However, I occasionally come across a case where I just think the court got it wrong.

In Mokler v. County of Orange, et.al. (Cal.App.Dist.4 11/26/2007), No. G036029, a former Orange County employee sued under several different claims, including sexual harassment of her by a county supervisor. While I agree with the court's decision on most of the issues presented by the case, I do disagree on their sexual harassment analysis and decision.

The Facts of the Case

Without going into too much detail, Ms. Mokler had to interact with Orange County Supervisors "on almost a daily basis" as part of her job duties, including Supervisor Chris Norby. Mokler introduced herself to Norby at a budget hearing in 2003 and he promptly asked her if she was married. When she said no, he called her an "aging nun". Mokler reported the incident to her supervisor, but he did nothing about it and actually told Mokler to "be careful".

Mokler next encountered Norby at a hotel where a political event was being held. Norby took her arm, pressed her body up against his and said "in a flirtatious manner: 'Did you come here to lobby me?'" Mokler responded that she was not there to lobby him and he asked "Why not? These women are lobbying me," gesturing to two women standing next to him. Norby continued to hold her body up against his, looked her up and down, and told her she had "a nice suit and nice legs". Mokler was finally able to push her self away from him and again went to her supervisor who again told her to "be careful" and further suggested she "needed 'to win him over'".

Mokler's final encounter with Norby occurred in his office. When she arrived, he put his arm around her and told her she looked "nice". He walked over to a large map on the wall and asked her where she lived. When she hesitated, he "demanded she provide her exact address." He put his arm around Mokler again and rubbed her breast with his arm until she pushed herself away from him and apparently a male co-worker interrupted them.

The Trial Court's Decision

The jury found in Mokler's favor on her sexual harassment claim against Norby, but awarded no damages to her for the claim. While uncommon, this does occur where an employee suffers no economic damages as a direct result of the harassment and they are unable to prove any emotional distress or other special damages. However, the trial court ultimately "entered judgment on this claim against Norby, but nonetheless declared him the 'prevailing party' and awarded costs in his favor."

In California sexual harassment cases, the "prevailing party" is entitled to attorney's fees and costs, but I am still scratching my head on how Norby had a judgment entered against him and is still considered to have "prevailed".

The only reason for this I can come up with is that there as an offer made under California Code of Civil Procedure 998.  Under that statute, if a party offers to settle for a set amount, the offer is rejected, and then the other party gets less than was originally offered to them, the opposing party can get their costs reimbursed.  However, this is not mentioned anywhere in the opinion and there are several reasons why even this does not make sense as a reason.  But this is not the point of the post, so I will let it go...

The County appealed several of the trial court's rulings, including the finding of sexual harassment by Norby for creating a "hostile work environment".

The Appellate Court's Decision

The appellate court reversed the trial court's decision, finding that no hostile work environment was created by Norby. The court ruled that Norby's conduct was not "severe or pervasive" enough to justify the trial court's finding that sexual harassment occurred.

It is extremely rare to find a case where both the jury and the trial court found that sexual harassment occurred and the appellate court reverses that decision. In almost all cases that are reversed like this, it is usually very clear that sexual harassment did not occur and the jury got it wrong. I would submit to you that in this case the jury was right and the appellate court was in error.

The appellate court based its decision on a number of factors, including their findings that the incidents "involved no physical threats," "the touching...was brief and did not constitute an extreme act of harassment," and the demand for her address was "brazen," but "[did not create]...a hostile work environment."

To me, if a manager rubs a subordinate's breast, this does constitute "an extreme act of harassment". This is sexual assault, plain and simple, which is punishable as a crime in California! How this conduct could ever not qualify as "severe" or "extreme" is beyond me. Further,holding her body up against his and telling her she has nice legs also borders on extreme.

The court suggests that no "physical threats" occurred. However, when a supervisor grabs an employee's breast after demanding to know where she lives and getting no response, to me this certainly does qualify as a "physical threat".

Additionally, while it is unclear whether Mokler brought her sexual harassment claim against just Norby or against Orange County as well, I believe the county should have liability here. When Mokler complained to her supervisor about Norby's conduct, he simply told her to "be careful" and that she "needed to win him over." I do not know whether these remarks were intended to suggest that she go along with Norby's behavior or if this was a veiled threat against her for complaining, but the way the court's opinion reads it seems the county did absolutely nothing to stop Norby's conduct and possibly tried to stop her from bringing it up.

This is simply one man's opinion, but I call them like I see them and to me this case was decided incorrectly by the appellate court. I do not know if Mokler plans to file an appeal, but I would be very interested to see what the California Supreme Court would decide after reviewing the case.

Yesterday the California Supreme Court heard arguments in Ross v. Ragingwire Telecommunications, Inc.

In this case, the employee was refused employment because his pre-employment drug test came back positive for marijuana. The employee had been using medical marijuana at the direction of his physician to deal with lower back strain and muscle spasms.

Case Background

Under California's Compassionate Use Act, patients cannot be prosecuted under state law for using or possessing medical marijuana.

However, while federal authorities do not usually pursue prosecution against those who simply use marijuana and do not sell it, the federal Controlled Substances Act still makes possession of marijuana illegal.

California's Fair Employment and Housing Act ("FEHA") makes it illegal for an employer to terminate an employee as a result of their disability or to fail to "reasonably accommodate" their disability.

The collision of these three laws is messy and the answer as to which should prevail is very unclear.

Criminal Law Meets Employment Law

The Supreme Court now has to interpret the FEHA while considering the two drug laws as a backdrop.

To simplify the discrimination issues in terms of a "normal" disability discrimination case, just substitute the word "Vicodin" for "marijuana". Generally, an employer could not terminate an employee for using Vicodin in connection with their disability.

Under these facts, the employee would have a fairly sound disability discrimination case under California law. However, the fact that marijuana use or possession is illegal under federal law complicates things considerably.

Employment Law Meets Criminal Law

For the Court to hold in Ross' favor, they would essentially prohibit employers from terminating employees for engaging in what is essentially criminal conduct.

The FEHA does not really address whether employers must allow employees to engage in illegal conduct outside of work as part of a "reasonable accommodation" for a disability.

Basically, the law is silent on this issue, but this analysis could turn on the word "reasonable". Is allowing an employee to break the law at home on their own time reasonable?

I do not pretend to know the answer to that question.

My Opinion

If I was deciding this case, I would say that the question of legality or illegality on the part of the employee does not enter into the analysis for the purposes of FEHA liability. Illegality should only be considered if it affects the employer.

It is important to note that Ross only used the marijuana at home and did not bring it to or use it at work. As long as the employee does not use the medical marijuana during work hours, I think it is no concern of the employer. I bring this caveat up because if they were to use at work, the employer would essentially be helping the employee commit a crime if they provide a place or time to use it.

I also think that employers would not have to allow the employee to work if they are under the influence at work and doing tasks that would make them dangerous to themselves or others.

Many of the opponents to Ross point to this as a major issue. How can an employer know if the employee has recently used and is safe to have at work? However, I think this is a red herring, because this would also be a problem where an employee has to use Vicodin, which arguably can impair function much more than marijuana does.

The Court's Opinion

Of course, my opinion does not matter much. What really matters here is what the California Supreme Court thinks.

Based on the transcripts from the arguments yesterday, it roughly seems to be a 3-3 tie among the justices present in deciding the case.

In a dramatic twist, Justice Carol Corrigan was out with the flu and could not attend oral arguments. She will be watching a videotape of the arguments to help her decide, but we have no way of guessing what she thinks of the case.

The Court has 90 days to issue a ruling. It should be very interesting reading.

What do you think? Let us know in the comments below...

Employers could avoid a LOT of lawsuits if they would just follow the "No Bad Apples Rule", which has its origins in a book written by Dr. Robert Sutton called "The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't". Although I agree with Dr. Sutton that "bad apples" probably is not a strong enough word, to be politically correct I will use this less offensive term.

The basic premise of this rule is that employers refuse to allow employees who are disruptive, excessively arrogant, rude or downright mean to work in their company. Often these employees are kept around because they are the top salesperson in the office or some other performance-based reason.

However, the book focuses on the reality that no matter how productive these employees are, it is usually not worth keeping them around when you consider the havoc they wreak on workplace morale, the performance of others and the potential for lawsuits against the employer later on.

It is very common when talking to prospective clients that they actually loved their job before Mr. X was hired and turned the office into a combat zone. Regarding their manager's reaction to these problem employees, these clients often tell me things like "my supervisor ignored it" or "my manager was oblivious to it".

An employer is especially in trouble if the a--hole is white (or male, young, straight, etc.) and those complaining are black (or female, older, gay, etc.). In California, this is usually enough for the employee to bring a "hostile work environment" harassment claim and often prevail.

If employers would simply communicate more with their employees, be cognizant of sharp drops in morale, and do something about these problem employees when they are discovered, they could avoid an awful lot of lawsuits by jaded and disgruntled employees.

Special thanks to the Workplace Fairness blog, where I first discovered this book.

Additionally, Diane Levine mentions a study at her Online Guide to Mediation blog, that comes to a similar conclusion about "bad apples".

Jay Shepherd over at the Gruntled Employees blawg has an interesting post from the employer's attorney perspective about why he believes mandatory arbitration clauses are a "stupid employer trick" and actually "not good for employers".

I never understood why many employers force their employees to sign mandatory arbitration clauses, so this is refreshing to hear from a management-side employment law attorney. I have been saying this for years with little agreement from the other side of the aisle.

The points Jay makes are especially true in California, where employers have to pay for any costs of the arbitration that exceed what an employee would have to pay in a regular court (essentially just a minimal filing fee). This ends up being much more expensive for employers than going to court, because arbitrators are paid hefty rates by the hour.

In fact, forcing an employer into arbitration under their own agreement is a good way for an employee to leverage a settlement, because suddenly the employer is expending huge amounts of money just to pay for the process they forced the employee to agree to in the first place.