No Time for Love, Dr. Jones

January 7, 2011

Beth Israel chief Paul Levy resigns.

In my welcome message, I noted that many people find love in the workplace.  It should not be unexpected, especially as the most opportunity to interact with potential romantic partners occurs at work.  Unfortunately, a number of problems can arise and they should be contemplated before engaging in such relationship:

1)  Is there an Anti-Fraternization policy?

Some companies prohibit employees from engaging in romantic relationships with other employees, although marriages are often excepted from this rule.  [However, nepotism rules may come into play.  Additionally, if marriages are not excepted, such prohibition may run afoul of laws in some jurisdiction, such as the District of Columbia, which prohibits discrimination on the basis of familial status.]  Thus, engaging in a romantic relationship with a co-worker may lead to termination and a denial of unemployment benefits.  Check all handbooks, manuals, policies, etc.  Sometimes, the prohibition is only for those in supervisory relationships.  As a side note, many of the objections to homosexual persons serving in the military were unfounded because the military still prohibits fraternization between members.  Such will survive the repeal of DADT.

2) How does Sexual Harassment/Discriminal Law come into play?

It can come in two different ways.  First is the obvious:  the relationship goes sour and one employee accuses the other or the company of sexual harassment.  This can be because the other employee continued to try to restart the relationship or kept bothering the employee.  Or, perhaps, a subordinate may accuse a supervisor of denial of promotion because they are no longer dating.  The second is less obvious:  other employees may complain that they didn’t get the promotion because they didn’t sleep with the boss.  Both the employees and the employer need to give serious consideration to both effects before endorsing it.

3) How can Employers/Employees protect themselves?

Every so often, there is reference to a “Love Contract” in the movies, television, or other media.  Essentially, it is an agreement between the employees who intend to engage in a romantic relationship and the employer, outlining how supervisory matters between the employees will be handled and what should be expected if the relationship ends.  This should be reviewed with an attorney, as rights to file claims in the event of egregious misconduct may be waived.

Unfortunately, there is no easy solution and every case is different.  Despite best attempts, problems may still arise.  But, though the attorney in me suggests they should avoid this scenario at all costs, the romantic hopes for the best and is happy for the new couple.


iPhone Causes Job Loss

January 6, 2011

Somerville woman says she lost job because of iPhone glitch.

In this article, we learn of a woman who was the victim of the iPhone glitch that resulted in a non-working alarm.  As a result, she overslept and lost her job.  Let’s take a second and analyze how an employment lawyer would look at this situation:

1)  Was the termination lawful?

Probably.  Massachusetts is an at-will employment state, which means that you can be fired for good reasons, bad reasons, or no reasons at all, unless they are illegal reasons.  So, unless the employer is only enforcing the tardiness rule against her because of protected class status (race, gender, religion, etc.), there is nothing unlawful about it.  It doesn’t matter that her reason was legitimate.  In fact, the employer doesn’t even have to announce in advance that there is a rule against tardiness.  An employer has the right to be weird and fire a person because they WEREN’T tardy.

2) Is she entitled to some form of severance?

Probably not.  Severance is, at its essence, free money for ending one’s employment.  It is a gift.  Unless, of course, there is a stated severance policy and the employment was continued under those terms. 

3) Will she get unemployment benefits?

In Massachusetts, you generally get unemployment benefits unless you quit for no good reason or are fired for breaking the rules (or acting against the employer’s interest).  However, the breaking of a rule must be “knowing” and acting against interest must be “wilful” (sic).  A good lawyer would argue that oversleeping one time due to a glitch in the alarm clock was neither knowing nor wilful. 

4) Can she sue Apple?

She may have a claim for detrimental reliance.  People expect that the alarm feature, built in to iOS 4, will work, especially if it has worked in the past.  However, the iPhone and every edition of iOS comes with printed and/or online terms and conditions.  It is well possible that Apple disclaimed that the clock would always work.  Also to be considered are damages:  if she gets a new job quickly, she will have mitigated much of the financial harm and she would only be out a few days’ pay.  Further, she may have to repay her unemployment benefits.

5) Are there any other claims?

She may want to consider how she was paid her final day.  In Massachusetts, you must be paid on the day you are terminated, including all accrued vacation leave and 3 hours for the day fired, else you are entitled to treble (triple) damages and attorneys’ fees.  And, if there are written employee manuals, policies, handbooks, etc., she should review them for any mandatory disciplinary/grievance procedures, including arbitration agreements. 

Any questions?


Welcome

January 6, 2011

Welcome to my new blog. As indicated by the title, I am an attorney focusing my practice on Employment law.  Employment law is the field of law that deals with the rights of
employers and employees in the workplace. It addresses issues like wrongful termination, sexual harassment, unlawful discrimination, disability accommodations, minimum wage, overtime, family/medical leave, safety/health and unemployment. In the legal field, it is distinguished from Labor law; Labor law deals with workplace disputes involving unions or other forms of collective organization. While I have experience in Labor law, and it may be addressed here and there, it won’t be the focus. Neither will Employee Benefits law be focused upon; that area deals with primarily healthcare benefits, insurance benefits, and pension benefits.

One of the reasons I love this area of law is that most of a person’s waking hours are spent at work, giving the most opportunity for important events to occur. Typically, the second question asked a person is “What do you do?” The answer, rarely, is “I collect model trains” or “I coach my child’s little league team”. Rather, it is “I am an accountant”, “I am a truck driver”, or “I own a small business”. Our jobs are part of our identities, and it makes
workplace disputes the most personal of all business disputes. I look forward to your questions and comments.
DISCLAIMER: This blog is not intended to be attorney advertising nor is it intended to create an attorney-client relationship. Anything you post here may be used against you in
your personal dispute. If you need legal advice, you can feel free to contact me or any other attorney to schedule a consultation.


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