Today’s Friday. And that means I put up a link to an employment-related news story that borders on the ridiculous.
This week’s gem is a sexual harassment suit brought by a former employee of a real estate company in NYC. The 23-year-old woman is alleging that at least 7 different male employees physically and emotionally harassed her, including exposing themselves and offering her $500 to watch her get busy with her girlfriend.
That, in and of itself, of course, is not newsworthy for an L&E blog. What makes this our Friday diversion is the stellar legal maneuvering of Odelia Berlianshik, owner of People’s Choice Realty. After making the always-bright decision to talk to nationally-recognized news outlets without being prepped by your lawyer (I hope, at least), Berlianshik defended the company by pointing out that no one would want to touch the former employee, because she’s too ugly.
Most of the time I try to pull some lesson from these stories. This time, the only thing I could think of is don’t tell a newspaper that the former employee/sexual harassment plaintiff they’re calling you about is lying… because she’s unattractive. For what it’s worth.
Found the story on Gothamist, which will take you to NYDN if you want the details.
I’m going to keep this post short, because there’s a long-ish homework assignment involved.
Did you do it? Ok, now tell me you don’t see this kid’s potential:
At 25, he:
- Manages 100+ employees, and keeps them not just motivated, but excited to do one of the most tedious, least recognized jobs in the company.
- Communicates flaws in his employee’s strategies without invalidating the idea. Or the employee.
- Balances control and employee empowerment.
- And to top it off, he loves his own job, too. 60-hour weeks and all.
For the love of God, someone put Cole Lindbergh on staff. Pay for his last year of college and moving expenses and give him a signing bonus.
If you don’t, a smarter HR department will.
There’s a super-sized question floating around L&E blawgs right now, posed by Walter Olson at Overlawyered.com, that goes something like this:
If you could press a button and instantly vaporize one sector of employment law, what would it be?
Jon’s reason was that it is
essentially actually impossible to be in full compliance with the hedge-maze of regulations set up under the FLSA. He’s right, of course, but like all superheroes, my reasons for doing away with our shared nemesis are my own.
I think the FLSA is one of the most outdated laws in the Federal Lexicon. It’s not surprising. By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA – a law whose sole purpose is to protect the American workforce – is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees, and the FLSA people had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work – cramming workers into classifications that didn’t really fit. Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.
Now, we’ve got news articles and pundits galore telling us that the future is an independent workforce – full of freelancers and mobile offices and microdistributors – and we’re still going to try and use this 1930′s regulatory model? That is a crisis that needs heroes.
Now where did I leave that spandex?
[sigh] The best laid plans… So, apparently WTFriday is a pretty common thing on the internet. Oh, well, different names for the same thing. On we go…
This week’s phenomenal diversion from the boring part of L&E comes from the equally-phenomenal Employer Handbook Blog by Eric Meyer. And, in keeping with this week’s theme, it comes from the Land Down Under.
Here’s the headline:
Thaaat’s right. What do they say about business trips? Once you’re out of your area code… it’s your boss’s fault? Her boss – which, fantastically, was some part of the Australian government, paid for the room. Here’s the reasoning behind the, um, ballsy claim:
The employee’s attorney argued, to no avail, that being injured while having sex “during an interval or interlude within an overall period or episode of work” was no different than being hurt doing other recreational activities.
You know, like showering or brushing your teeth. Guess how well that went over.
Check out Eric’s blog for the rest.
I got a challenge from my brother Dan the other day to write a blog post about this story about working conditions at Team Bondi, the software developer behind the hit video game LA Noire. Turns out even at 30, I can’t turn down a double-dog-dare from my big brother, so I dug in.
Team Bondi is a software development company founded in 2005 for the express purpose of making LA Noire. While 2005 doesn’t seem that long ago in actual “regular person” time, in video game land, seven years is a lifetime. The fact that LA Noire took seven years to make means that, when it started, the Xbox 360 was just rolling off the assembly line, and the Wii and Playstation 3 wouldn’t hit shelves for another 6 months at least. I have it on good authority that for video gamers, that means 2005 was a long frigging time ago.
When LA Noire finally did come out this year, it was to rave reviews, and some glaring criticism: first, some of the developers who worked on it over the years noticed their names were missing from the credits. This sparked an online grumble, which erupted last month into allegations by anonymous former Bondi employees of “sweat shop” like working conditions, including a never-ending, near-obligatory “crunch” – which means “overtime work” in either British or techie slang. Still not sure which.
- Workloads averaged about 60 hours per week, and spiked to 110 hours when milestones had to be met.
- The crunch never stopped – management promised that, once a deadline was met, things would ease up, but the goalposts kept moving, and the expectations of weekends and overtime just became a constant.
- Masses of employees, with estimates ranging from 45 to well over 100, either walked out or were fired over the seven-year project.
On top of the conditions, Bondi founder Brendan McNamara was obviously tough. He made “unreasonable” demands of project groups and would bypass and ignore team leads if they questioned him. Former Bondi employees have called the working conditions “inhuman.”
McNamara’s response has been unapologetic, to say the least. From IGN:
“We all work the same hours,” he told us. “People don’t work any longer hours than I do. I don’t turn up at 9am and go home at 5pm, and go to the beach. I’m here at the same hours as everybody else is. We’re making stuff that’s never been made before,” he asserted. “We’re making a type of game that’s never been made before. We’re making it with new people, and new technology. People who’re committed to put in whatever hours they think they need to.”
Like I said, tough. Well, his toughness may come at a price. The International Game Development Association has announced an investigation into working conditions at the company. Here’s my takeaway:
Ed. Note: So, other L&E bloggers I follow have special Friday things that they post, like roundups of what they read, I think for the express purpose of not giving readers anything too taxing right before the weekend. Not having to worry about “readers” per se, and not feeling any compelling need to post the rest of the week, that part of the special Friday post is lost on me. Nonetheless, I am jealous of all of them for myriad reasons, so I’m stealing the idea. As I’ve said before, one of the influences for this blog was Gary Skoning‘s “Wackiest Employment Law Cases” series. I figured the regular Friday post would be a great way to pay homage to that tradition, so from now on, every Friday I’m going to link to the most ridiculous L&E-related story I’ve read this week. I’m calling it WTFriday. Clever, right? Okay, here goes:
If you poll a few labor & employment attorneys about what industry has the most L&E sketchiness, one of them is bound to say themselves. Not themselves specifically, but lawyers, as a group. We are the worst.
Don’t believe me? I had a friend from law school that went on three interviews in a month, two small firms and a slightly bigger operation, and all three of them asked her if she was planning on having babies anytime soon.
So, from the “Shouldn’t We Know Better” Desk comes this headline in the ABA Journal:
Yeah. You read that right. Apparently the prominent Chicago class action attorney (whose name you cannot read here, but is certainly available in the article) is facing a couple of lawsuits for trying to “work out a deal” with some of his female employees, and other totally normal successful-attorney-type behavior like taking off his pants at work.
The attorney says that the employee is raising false allegations because she was recently asked to look for another job.
Happy WTFriday, everybody.
If you’re in the Chicago-area, especially in the western suburbs, I will be conducting a seminar for the West Suburban Chamber of Commerce & Industry on July 15 entitled “Hiring and Managing Employees in the Age of Social Media”. The info is below.
We’ll be discussing the basics of social media policies and what to do when an employee misuses social media, the NLRB’s facebook firing push, and how you can and can’t use SM to screen applicants and employees. There will also be a Q&A at the end, so bring your questions. Hope to see you there!
And if you are an employer in the Western Suburbs, check out WSCCI. They are a great resource and connection point for businesses in the area.
“Hiring & Managing Employees in the Age of Social Media”
July 15, 2011
7:50 – 9:00 am
WSCCI Chamber Offices, 9440 Joliet Road, Suite B, Hodgkins (East doors of the Republic Bank building)
Please RSVP to Kristen at firstname.lastname@example.org or call 708-387-7550.
I say “You” because this is a blog – and that means I have super fancy internet magic that shows me who reads this stuff I write, and I can tell you that massive corporations make up about .001% of my ego-killing-ly meager audience.
So this post is to the small businesses, sole proprietorships and freelancers that do read this blog with some regularity (and thank you for it, by the way). I know you all got blasted from your corp lawyers and your local chambers of commerce and your aunts on Facebook telling you about the Supreme Court’s business-friendly stance in Dukes v. Wal-Mart, and how it was such good news for companies in this struggling economy and so on. And I know it’s been tough to gauge where the SCOTUS stood on employment issues for a while, and this case was all about discrimination law, so it seems like a good sign and you guys are probably feeling really good about it and everything. So forgive me for playing with your emotions a little, but this next statement is going to be something of a roller coaster. Just bear with me…
What does the Dukes v. Wal-Mart decision mean for you, small business owner? Nuthin.
Seriously – not a damned thing. If you employ one to one hundred employees, I cannot imagine any scenario by which the Dukes decision will ever have an effect on your business, even if every one of your employees sued the pants off of you at the same time.
But you know what? That’s good. Really good. No, seriously. In a million ways, you do not want the Dukes decision to have any effect on your business.
As expected, the Supreme Court handed down a rejection of the 1.5-million-member class action against Wal-Mart today.
If you have been doing the labor & employment equivalent of living under a rock The case, Dukes v. Wal-Mart, alleged that Wal-Mart’s pay and promotion policies discriminated against women because of their sex. A handful of current and former women sued the Company on behalf of all women employees from 1998 to the present.
The District Court and the 9th Circuit Court of Appeals had both approved of the class, and a splintered en banc review of the case by the 9th Circuit left it standing, as well. But the Supreme Court knocked it down unanimously. The four most liberal justices joined in a partial dissent, but all the justices agreed that the enormous putative class lacked the commonality required to bring a single lawsuit against their collective employer.
I will put together a big post about the ruling (maybe a few – this is one of those cases you have to “unpack” a little), but here’s the gist, from my initial reading:
News came yesterday that Walmart lost its appeal of a $187.6 Million verdict in a Pennsylvania wage & hour case originally tried back in 2006. The suit alleged that 187,000 workers were denied their right to rest and lunch breaks under Pennsylvania state law. The case was notable because Walmart attempted to distance itself from its own documentation of time records for its PA employees, claiming that the timesheets were too faulty to be trusted.
The Plaintiffs argued that local managers were under ever-increasing pressure to cut costs, resulting in chronic understaffing that led some workers to work through their breaks, whether or not they were still on the clock. Walmart claimed the records that showed when employees punched in or out were too inaccurate to be used as legal evidence.
The Pennsylvania Superior Court apparently wasn’t thrilled with the argument, noting that the company’s own internal investigations had revealed illegal “off-the-clock” work. According to the Plaintiff’s Attorney’s press release, Walmart also tried to argue that it had been denied due process because the trial court refused to let it question each individual class member regarding their hours worked.
It wasn’t a total loss, though – the Court said that some of the plaintiff’s attorney’s fees were counted twice, and would have to be recalculated. That’s a drop in the bucket compared the the verdict and add-on penalties levied against the company. For a great breakdown of how the Pennsylvania Wage Payment and Collection Law turned a $49 Million verdict into $187 Million payout, see Phillip K. Miles’s Lawffice Space post here.
A Walmart spokesman said they are looking forward to further appeal.
All the while, the world is waiting with bated breath to see what the Supreme Court has to say about Dukes v. Wal-Mart, the biggest wage-and-hour class action ever, which finally made its way to Washington. Though it is on the tip of every employment lawyer’s tongue, the question before SCOTUS doesn’t have that much to do with the wages or hours of Walmart employees, and everything to do with the nature and future of class actions in American jurisprudence.
The question before the Court is not whether Walmart violated any wage laws, but whether a class of this size – all women who worked for Walmart between 1998 and now – is really ever fair. Walmart is arguing that it is impossible for every women it’s employed for the past 13 years to have enough in common to be certified as a single class.
Oral arguments in that case are over (and seemed to go well for the retailer), and the decision is expected early this summer.