Mid Summer Madness in the Employment World
Lessons to be learned from Penn State. As we live through the dog days of summer, there have been a number of stories and developments that caught my eye over the past several weeks. Initially, I want to talk about Penn State and child abuse. We all know that Jerry Sandusky was convicted on numerous counts of child abuse. The Freeh report came out, finding that the very top levels of management acted improperly in the handling of the matter, including the ex-President of the University and Joe Paterno, the head football coach. The NCAA leveled severe sanctions against Penn State, including a $60 million fine, loss of scholarships and a lengthy post season ban. If the Freeh report, which was commissioned by Penn State, is correct, the response to the reports over the years by Penn State was inadequate, and it is paying for it's inability to conduct a prompt, thorough and complete investigation. I have been saying for many years that inappropriate conduct can be engaged in by the very top of any organization, including presidents, CEO's and even beloved football coaches who had an impeccable reputation until this story came to light. Any reports of inappropriate conduct, whether harassment, discrimination, or violation of company policies must be taken seriously, the appropriate investigation must take place, and the appropriate disciplinary action must be imposed on the wrongdoers. In addition to the terminations, the $60 million fine, and the impact on the football program, Penn State has reached a new low with the negative public perception, students are divided, and Bloomberg reports that Penn State may have its credit rating reduced. Bloomberg reports that "Moody's is reviewing the university's "management and governance," which it said in a press release today appear to be weak based on recent reports and investigations."
Practice pointer. Although Penn State is an extreme example, these same results can and do happen to smaller companies and businesses. Penn State will survive this tragic situation: many smaller companies and businesses cannot. There is no place at work for sexual abuse, harassment, discrimination, or other unlawful conduct. The culture and ethics of a company starts at the top, and works it way down. Leaders need to set the right example for the workforce.
Alabama Anti-Texting Ban Effective August 1. Effective August 1, it will be illegal in Alabama to manually send or receive text messages while driving. The statute defines a Wireless Communication Device as a "handheld cellular telephone, a text-messaging device, ...a stand alone computer, or any other similar wireless device that is readily removable from a vehicle and is used to write, send or read text or data through manual input." The term "wireless telecommunication device" does not include a device which is voice-operated and which allows the user to send or receive a text-based communication without the use of either hand except to activate or deactivate a feature or function." The statute includes a ban on text messages, instant messages and electronic mail. The statute specifically excludes "reading, selecting, or entering a telephone number or name in a cell or wireless telephone or communication device for the purpose of making a telephone call". In addition to small fines, a conviction under this law will result in 2 points being placed on the person's driving record.
Practice pointer. Employers have been named as defendants in other states when their employees were involved in accidents, on company business, while texting. The exposure is huge if someone is seriously injured or killed as a result of an accident that occurs when the driver is texting on company time and business. Employers should consider adding a policy that prohibits texting while driving in a company car or for company business.
Under Title VII, Illegal Aliens are not a Protected Class. Kristi Cortezano was employed by Salin Bank and Trust Co in Indiana. Her husband, Javier, was a Mexican citizen whose presence in the United States was unauthorized. Kristi was hired as a manager in training, and was promoted to the position of bank sales manager and then transferred to a more profitable branch. She had a joint account with Javier. Javier opened a car detailing and repair business, and lacking a social security number, he obtained an individual tax identification number (ITIN). With some help from Kristi, Javier opened 2 accounts of his own: a personal account and a business account using his ITIN. Unfortunately, the business failed, and Javier returned to Mexico to sort out his citizenship status. Around the same time, Kristi requested from her supervisor a 2 week vacation so she could travel to Mexico to help Javier. At the same time, she disclosed to her supervisor that Javier was in the US without authorization. The supervisor notified security, and Mr. Hubbs confirmed the existence of the bank accounts and raised concerns that various laws against bank fraud may be implicated. Upon her return from Mexico, at a meeting with her supervisor and Hubbs, she admitted that Javier had entered the US illegally. Hubbs yelled at Kristi, called Javier a "piece of shit" and harped on his illegal status. HR circulated a draft "Termination Notice", identifying Kristi's complicit behavior in Javier's alleged fraud scheme as the reason for her firing. The bank scheduled a meeting with Kristi, and she appeared with her attorney. The bank refused to allow the attorney to attend, and she walked away. The bank sent her a letter terminating her employment for refusing to participate in the meeting. Hubbs reported her activity to ICE, and attended a meeting of the Fraud Financial Network, a consortium of banks in Indiana with the mission of rooting out fraud. Hubbs warned the other banks the Kristi was fired for opening fraudulent accounts for Javier, "an illegal immigrant who was now back in Mexico." Kristi sued the bank alleging that she was blacklisted by the bank, the bank defamed her, the bank intentionally caused her emotional distress and the bank discriminated against her in violation of Title VII. The trial court granted summary judgment in favor of the bank, and on appeal, the 7th Circuit found that Javier's alienage was not protected by Title VII. Title VII encompasses discrimination based on ones ancestry, but not discrimination based on citizenship or immigration status.
Practice pointer. There is often a fine line between discriminatory conduct based on national origin and that based on citizenship or immigration status. Employers must be careful when they find out that their employee, or a spouse of the employee, is in the US illegally: the employee can be terminated based on this fact, but they cannot be discriminated based on their national origin. Likewise, if an employee's spouse is in the US illegally, employers must be careful how they treat the employee. Kristi's case was very clear: her conduct as a bank officer in helping her unauthorized alien spouse open bank accounts was against the law. The facts of most cases are not as clear cut.
Mid Summer Dumb Social Media Story. 24 year old Steven Carroll, from Mulga, a small town in north Jefferson County, was arrested this weekend and charged with having an open house party, when more than 300 people appeared at his house, including 100 minors. How did the arrest happen? Carroll originally posted an invitation on Facebook for a party in an open field, and he would provide beer and Jell-O shots. The police were tipped off about the party by a concerned parent, and when they arrived at the field, no one was there. They went back to Facebook, and found that Carrol had changed the location of the party to his house. That is where they found the 300 people and arrested Carroll. Another dumb act using social media.
Practice pointer. Using social media is not private: without privacy settings, anyone in the world can view it. With privacy settings, it may be a little more difficult, but it can still be made available to the whole world: all it takes is one person to re-post, re-tweet, etc. on an unprotected site.
