As 2012 came to a close, the Iowa Supreme Court ensured that it would go out with a bang when they ruled in favor of an employer who fired his female employee for being too attractive. The details of the case stated that Melissa Nelson worked for employer Dr. James Knight as a dental assistant for approximately ten years. During this time Nelson became a valuable employee in that her performance was high. Both Nelson and Knight agreed that they had a positive working-relationship.

However, over the last year and a half that Nelson worked for Knight, he complained that Nelson’s clothes were too tight, which he found distracting. On occasion he asked Nelson to put her lab coat on. During testimony, Knight testified that he made the statement that “I don’t think it’s good for me to see her wearing things that accentuate her body.” Nelson denied that her clothing was tight or inappropriate. For the last six months of Nelson’s employment, she and Knight sent text messages to one another outside the workplace. However, the texts were either work-related or personal updates about children or other topics that were not sexual in nature.

Nelson denied ever engaging in sexual conversation or pursuing a sexual relationship with Knight. On the other hand, Knight acknowledged making the following comments: “If she saw his pants bulging, she would know her clothing was too revealing.” “The shirt she had worn that day was too tight.” ” It was a good thing Nelson did not wear tight pants too because then he would get it coming and going.” On another occasion Knight sent a text to Nelson to ask how often she experienced an orgasm.

Throughout the case it was made clear that Nelson did not have any complains regarding sexual harassment, nor did she ask Knight to stop texting her or that the behavior made her uncomfortable. However, after Knight’s wife, also an employee at the clinic, found out that he and Nelson were sending texts to one another, she decided Nelson was a “big threat to [their] marriage.” She demanded that Knight fire Nelson. When Nelson was terminated, Knight told her that she had done nothing wrong, but that he was becoming too “personally attached” to her and he was afraid that in the future he would pursue an affair with her. In a summary judgment the court ruled that “in part, “Ms. Nelson was fired not because of her gender but because she was a threat to the marriage of Dr. Knight.”

Upon appeal, the Iowa Supreme Court reviewed the matter according to Title VII because of Nelson’s claim that she would not have been terminated except “but for” her gender. In her argument she presents three points 1) The plaintiff’s sex is implicated by the very nature of the reason for termination. 2) That without a requirement for misconduct, this becomes a means of executing adverse actions by claiming “my spouse thought I was attracted to them.” 3) If Knight would have been liable for sexually harassing her, “he should not be allowed to avoid liability for terminating her out of fear that he was going to harass her.” In response, the court clarified that there is a distinction between a one-off employment decision based on a personal relationship regardless of whether opposite gender would have prevented the relationship, and an employment decision based upon gender itself. The court found that this case fell in to the first category in that Knight’s decision was based solely on his specific relationship with Nelson. Current Federal caselaw states that an adverse action stemming from a consensual sexual relationship is not actionable under Title VII if an element of sexual harassment is not present. Finally, the court noted that had Knight fired several female employees because of his attraction or that his wife demanded termination of several employees, this case may have taken a different turn.

This case presents an interesting position for employers to consider. On its face this case seems to immediately be a violation of Title VII; however, further review shows that Knight’s decision to terminate was lawful based on the specific relationship with Nelson. Had there been multiple employees adversely impacted under the same reason, or if Nelson had claimed some element of sexual harassment, it’s entirely possible the court may have ruled in her favor. As it stands; however, this matter is the specific consequence of a consensual relationship and not discrimination.

Another shooting incident has occurred in the Denver-metro area and domestic violence may be to blame. At approximately 8:00 AM on January 9, 2013, police believe Christopher Fields shot his ex-girlfriend in her employer’s parking lot. While details are still emerging regarding the exact history between Fields and the shooting victim, Fields  has previous convictions related to “felony intimidation and stalking” as well as  “misdemeanor stalking .” Additionally, Fields has more than one protection order issued against him.

While employers, bosses, and co-workers may want to turn a blind eye to domestic violence, the reality is that domestic violence frequently spills over into the workplace in a multitude of ways. According to the Bureau of Labor Statistics, in 2011, homicides accounted for 21% of women’s deaths in the workplace and 9% of men’s deaths. Of those homicides, 39% of women were killed by a relative or domestic partner, as were 2% of the men. Additionally, approximately 30,000 to 40,000 incidents of workplace violence occurred in which an employee had an intimate relationship with the aggressor. Further, approximately 75% of working women surveyed reported being harassed at work at some point in their career, by an intimate partner. According to the Bureau of Labor Statistics, approximately 175,000 days of work were lost per year, related to domestic violence. Finally, businesses lose approximately $100 million per year in lost wages, absenteeism, and productivity concerns, connected with domestic violence.

Recognizing the impact of  violence in the workplace, in 2009, Governor Ritter (Colorado) issued an executive order requiring all state agencies to implement a policy related to workplace violence, which included domestic violence.  The policies include “increasing awareness of and education about workplace violence, including domestic violence affecting the workplace, and informing employees of available resources for assistance.” The policy strongly encourages victims of domestic violence to report their situation to human resources. Additionally, employees who are a party to a protective order are strongly encouraged to report that information. While the executive order applied specifically to Colorado state agencies, all employers would be wise to follow suit and implement a similar policy, as employers have an obligation to protect their employees on company time.

Only those without the capacity to reflect have not paused to consider the magnitude of the tragedy which unfolded in the small village of Sandy Hook, Connecticut last week. Of those who perished, 20 were elementary school children enjoying the last days of school before their holiday break. Already, before the dead are honored and the grief has subsided, some are asking the imponderable—what ought we do to prevent tragedies like this from ever occurring again?

In these modern times there are those among us who feel compelled to subject events such as this to analysis. How does such senseless waste occur in a town that is 95.14 percent White, 2.36% Hispanic or Latino and a mere 1.75 percent Black?—as if evil should strike only those of color or live in poverty. Consider Columbine, Aurora, Virginia Tech and the island Utoya, in the quiet and affluent country of Norway. Or maybe it is guns that are evil. With reliable estimates of something near 45 percent or 52 million of American households owning 260 million guns, there are already those who have called for more gun control. How about the school itself—did it and its administrators provide its students and faculty the level and quality of protection they deserved?

Evolving the coming weeks and months will be application of the calming salve of new, bold public policy. Experts, pundits and politicians will emerge each urging a new reform, tighter regulations and more law. But in a state with some of the most restrictive gun laws in the nation, how will it keep stolen guns out of the hands of murders (it appears the killer stole the handguns he used from his mother, as he was not of age to purchase them himself)? With gun-free zones already surrounding our schools how will anyone stop those who wish to violate the law and use guns to harm our children? How will more barriers, locks and cameras stop those with no conscience? The answer seems painfully obvious, we will not.

We will not stop these tragedies because something more dangerous and menacing than the psychopaths that commit these crimes is in our way. That something is our culture. We have allowed the corruption of our culture to the extent that it is killing the most innocent of us. We have accepted the belief that those who commit crime are themselves victims. We have allowed are ourselves to believe inanimate things can kill us and yet, other inanimate things can protect us. We believe that lawlessness and ethical deviance can be eliminated by imposing more stringent laws and stricter regulations. But most tragically we have embraced the notion that, confidentiality (in all its glorious forms), the protection of mental health records, and individual privacy rights trumps all other personal rights, including the sanctity of life. We have created a culture that celebrates the individual and his privacy at the expense of the group, our communities and the survival of a safe and nurturing society.

So while the details of the Sandy Hook’s killer and his life history continue to be revealed and we search for motives and understanding, let us not forget the contributory role of our culture. We will undoubtedly learn members of that quite community knew of the killer’s psychopathy and the evil which consumed his heart. It will be revealed that someone knew or suspected his intentions and chose to remain silent. Sheltering him was a conspiracy of silence fortified by his privacy rights and our impulse to protect them.

We would be remiss not to examine our gun laws seeking to fill existing gaps and loopholes. We should examine the sufficiency of our schools’ policies and security protocols. We should contemplate the way we identify and assist those with mental health issues. And we should continue to look for answers. But psychopathy is not bound by our laws, protocols or artificial barriers. The psychopath has no conscience and as long as he lives in a culture which tolerates him and attempts to explain away his pain and criminal behavior he will continue to disappoint us and murder our children.

Let us instead grieve and pray. Yes pray. Pray for the innocents, their survivors and their pained community. Let us give thanks this Holiday Season for that which we have and those that we love. Forget not, those that love us and our responsibility to them. Let us also ponder our wisdom and lack of it. And maybe we ought to ask, is it time to rethink our values and priorities?

In an ideal employment world, being a military veteran is desirable, and previously it was desirable. Having military experience meant a lot in terms of individuals who are loyal, hard-working, used to working seamlessly with a team, and able to follow direction. These are unarguably great traits to look for in an employee. However, a lot has changed over the past ten years and the current returning veterans are having a difficult time finding employment upon leaving the military. Specifically there seems to be stigma and fear around those diagnosed with Post-Traumatic Stress Disorder.

Post-Traumatic Stress Disorder, or PTSD, is a psychological issue that upwards of 20 percent of Iraq and Afghanistan veterans are diagnosed with. Some of the primary symptoms associated with PTSD include:

• Recurrent and intrusive distressing recollections of an event
• Feeling or acting as though the traumatic event was reoccuring
• Psychological distress
• Physiological reactivity
• Irritability and anger outbursts
• Concentration issues

Possibly the rise in the percentage of PTSD diagnoses may be impacted by an increase in awareness; however, more important is the fact that returning veterans face a variety of issues upon reintegration to the general work force.

Currently the unemployment rate among post-9/11 veterans is approximately 9.7 percent. Unfortunately stigma around PTSD seems to be playing a significant part in the difficulty service members experience when trying to return to work. Part of the issue may be that PTSD is an “invisible” disorder in that it is not perfectly clear what type of considerations or accommodations may be needed. If an employee is hired who is missing a limb, it’s straightforward in terms of how to accommodate the employee. But when PTSD is involved, aside from time off for appointments or therapy, many employers are unsure of how to handle the emotional aspects of PTSD. There is so little understanding or predictability surrounding how issues related to PTSD may play out in the workplace.

Certainly it is unlawful according to the Americans with Disabilities Act and with the EEOC to discriminate against veterans who have injuries or disabilities. And yet, many veterans are finding themselves turned away from jobs that they are more than qualified for. The perception that has been generated is that perhaps there is fear associated with the negative stigma of PTSD because some of the symptoms may be disruptive to the every-day work environment.

The Veteran’s Affairs office of Vocational Rehabilitation and Employment Service suggested a few suggestions that do a lot to relieve stress in the workplace that may lead to triggered PTSD:

• Short breaks
• Organizational technology to reduce mental clutter
• White noise machines
• Remote workplaces

As an employer, remember that you are hiring employees for particular experience and skill sets, rather than potential medical diagnoses, and veterans are afforded additional protections. However, as noted, there are some simple accommodations that are generally easy and inexpensive for employers to make that will improve the workplace for your veteran employees.

Hospitals and health care organizations are no strangers to wage-and-hour claims; many of which result in substantial payout to employees. However, a recent Circuit Court of Appeals decision stressed the importance of having solid policies and procedures in place related to compensation, to combat such lawsuits. On November 6, 2012, the Sixth Circuit Court of Appeals upheld the dismissal of a collective action wage-and-hour suit brought against Baptist Memorial Health Care Corporation. The Sixth Circuit affirmed this decision based upon “evidence the employer had adopted and implemented a reasonable procedure for employees to report, and obtain payment for, work they performed outside of their scheduled work hours.”

The decision stemmed from a collective action suit against Baptist Memorial Health Care Corporation, in which one nurse claimed that she and several other employees were not paid for all time worked. The nurse alleged that she and her colleagues often missed meal periods, or had them cut short; yet, the hospital’s automated timekeeping system automatically deducted those specific periods of time from hours worked. However, the hospital previously distributed policies related to work time and clarified procedures in place designed to ensure employees received their full pay. Specifically, the hospital utilized an “exception log” in which employees could record all time worked during meal breaks. The hospital also had a procedure for reporting any errors in payroll. All employees signed documents stating they understood the aforementioned policies and procedures.  Moreover, the hospital followed their internal policies and procedures. The nurse who brought the suit acknowledged that on the occasions she completed the exception log or reported unpaid time to payroll, she received prompt compensation.

The court noted in the decision that “if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.”  In this case, the hospital not only had policies for reporting wage-and-hour discrepancies, the hospital followed-through on compensating employees when any disparities were reported. As such, the court determined that “an employer cannot satisfy an obligation that it has no reason to think exists.”

This court decision highlights not only the necessity of proper policies but also having adequate measures in place to allow for employees to report concerns and issues. By having thorough policies and procedures regarding reporting unpaid work time and correcting payroll errors, this hospital squashed a collective action suit brought by numerous employees seeking payment for time worked over a two or three year period.

Glancing at today’s headlines and media reports from various sources it is clear that ethics, specifically the lack thereof, remains a persistent issue in our country. The headline grabbers are obvious as high profile cases, however, an in-depth review of the news sources will bring to light numerous reports of unethical actions by, business leaders, educators, students, and public officials at all levels within their organizations.

An organization’s leader must lead by example, modeling in an ethical manner in the course of performing their daily responsibilities. It is also necessary that the standards of ethics defined for the agency are applied across all levels of the organization.  To truly permeate an organization, leaders and staff alike must be held accountable to those standards.  Ethical leaders must always seek and find the high road.

According to John Maxwell, author of over sixty Leadership books, “a leader is the one who knows the way, goes the way and shows the way.”

Max Depree, author and CEO, Herman Miller Office Furniture, 1980-87, states that “the first responsibility of a leader is to define reality.” He concludes that leadership is the opportunity to make a meaningful difference in the lives of those who permit you to lead.

It seems clear that it is the organizations leader who must constantly define and communicate ethical behavior in words and actions. But why is this necessary?  Remember, a leader’s position is similar to that of the “doctor” in the famous experiment conducted by Stanley Milgram in 1961.  He wanted to determine the behaviors of people pressured between choosing their conscience and following an authority figure.  The participants were directed by the “doctor” (Formal Leader) to administer an electric shock to another participant, “subject” for providing an inaccurate answer to a question.

The results of the test were unbelievable and shocking, pun intended. The participants continued to shock the experiment’s subject, despite the subject again and again crying out in pain and pleading for the experiment to be stopped.

As the organizations leader, you are like the doctor. Knowing the conclusion that was derived from the experiment is instructive.  When confronted by someone in authority, most people will do what they are told, even if it clashes with their sense of right and wrong. Likewise, when a behavior is modeled by the authority figure, the likely hood of that behavior being perceived as acceptable will be emphasized.

Workplace investigations often utilize a variety of techniques to gather information during the course of a case. Perhaps the fastest growing investigation technique has been the implementation of electronic surveillance in the workplace. While these new technological advances have provided investigators with a variety of new tools, these advances also seem to be causing their share of problems. As the capabilities of technology increase, so does the grey area concerning the legality of their use.

Recently, court rooms around the country have been hearing a lot of concern about the use of GPS trackers on employees. Tracking something (or someone) via GPS has been available since the mid-70s but the advances that have been made since then have allowed for much cheaper and more efficient ways doing so. When faced with an investigation that requires surveillance, it only seems logical that employers and private investigators have turned to GPS monitoring. While the issue still seems to be catching flack, the majority of states have come to the conclusion that companies are allowed to install tracking devices on company owned vehicles. This is a way for the company to monitor productivity and ensure that their employees are working. But what about a private vehicle parked on company property? Should an employer be allowed to slip a GPS tracker under the car and monitor their employee after hours?

In early 2012 the United States Supreme Court (United States v. Jones) ruled that GPS tracking falls into the category of a “search” and therefore should be held to the same standards that qualify other acts as “unreasonable searches.” Some states have already established laws that installing a GPS tracking device is a criminal offense without the consent of the vehicle’s owner. With this said, several courts including New York and New Jersey have both ruled that it is not a violation of privacy to install such a device without permission.

Very little is clear when it comes to the legality of monitoring your employees through the use of GPS tracking. Perhaps the only thing that is clear is how the ambiguity of this legal issue is being exploited by some. Remember, if you find yourself wondering whether or not something could lead to a lawsuit, the answer is always YES. The ACLU offers some advice when considering electronic surveillance within your company. While these guidelines are not legally enforceable in most states, it is recommended as best practice that employers:

1. Notify their employees of electronic monitoring policies.
2. Ensure that any efforts to electronically monitor employees are limited to work related settings.
3. Consider the possibilities of collecting more data than may be originally intended and take steps to protect this data from outside parties.
4. Provide employees with the opportunity to dispute any seemingly inaccurate or misleading data.
5. Understand that these rules should apply to company provided equipment like smart-phones or laptops with tracking cabablites.

Today, voters across the state of Colorado will be voting on Amendment 64, which would legalize marijuana. Similar bills are being voted on in Washington state and Oregon as well. It is not clear how the playing field will change if marijuana becomes legalized in any or all of these states; however, it will likely have a cascading impact upon the entire issue of controlled substances. Currently, regardless of whether a state-level measure is passed that legalizes marijuana, it is still against federal law to sell, purchase, or use marijuana. However, if legalization does occur, it would not be unreasonable to assume that there will be an increase in use and awareness of use in response to effectively removing resources put toward marijuana use.

It is not known what impact legalization would have on the workplace, or even how marijuana use and the workplace will relate to one another. However, there are a number of issues employers should be prepared to consider.

It is estimated that approximately 25% of all workplace injuries, and 20% of fatal workplace injuries are related to the use of drugs or alcohol at work. As a result, many organizations have a drug and alcohol policy that they enforce. Legalization of marijuana does not necessarily except it from this type of policy. However, it does get trickier to identify in the workplace. Current testing measures are able to determine if a person has used marijuana within the past several days to six weeks. Because marijuana use is currently illegal, there is a clear line regarding a positive drug test. If marijuana is legalized, it may become more difficult to determine marijuana use on company time, in violation of a drug policy, versus marijuana use on personal time, in a manner that is legally acceptable. This issue is a continuation of issues being seen related to those who use marijuana for medical purposes.

Marijuana use can also introduce liability to the organization, particularly as it relates to workplace safety. It is currently understood that marijuana can impair a person’s ability to operate a vehicle or heavy machinery. Being under the influence at work creates liability if it results in a workplace injury or death. Currently, the courts are siding on the side of the employer as it relates to the use of medical marijuana, and several states, to include Colorado, Michigan, Hawaii, Montana, New Jersey, New Mexico and Vermont have specific legal language protecting employees in any case that does not include on the job use or impairment.

Regardless of which way you fall on the issue personally, the legalization will have long-lasting implications regarding marijuana use and the workplace. If legalization occurs as a result of this election, expect fierce legal battles to duke out the specific boundaries related to the use of marijuana and the workplace. Further, expect to see the Supreme Court continue to review cases of marijuana use – medical or otherwise – to further establish these definitions.

The United States Supreme Court is revisiting who, and under what criteria, qualify as a supervisor. When questions of vicarious liability arise, the Court turns to precedent, as established in the cases of  Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.

In Farahger, the Court was tasked with determining if an employee could be held liable under Title VII for the actions of it’s employee when the employee’s behavior towards their subordinates created a hostile environment leading to employment discrimination. In Burlington, the Court decided whether an employee, who refused sexual advances from  a supervisor yet suffered no adverse job-related consequences, could recover against an employer under Title VII , without showing that the employer was responsible for the supervisor’s harassing conduct. In both cases, the Court found that the employer was vicariously liable for  the actions of their supervisor. In both instances, the person deemed ‘supervisor’ had the ability to hire and or fire the harassed employee.

Currently,  the Court is evaluating the question of employer liability as it pertains to the definition of a supervisor. In Vance v. Ball State University, the Court has been asked to determine if a coworker, who has  authority to oversee the daily work of another employee, can be considered a supervisor for the purpose of determining employer liability for harassment. The case in question, arose after Maetta Vance, a substitute server for Ball State Dining Services, alleged that her co-worker used racial epithets toward her and other African American students. The University disciplined the co-worker via a written warning. However, Ms. Vance reported that continued incidents made her feel “unsafe” in the workplace. The University again investigated but found no support for the allegation. According to Ms. Vance, the workplace environment continued to worsen. Ms. Vance ultimately sued the University. However, the district court determined that the University was not liable for the actions of individual coworkers and the U.S. Court of Appeals for the Seventh Circuit affirmed. The Supreme Court will hear oral arguments in this matter on November 26, 2012.

In April 2006, several students complained that their sixth grade teacher, Mr. Jeffery Leardini, “touched” them. Ms. Kay Cunningham, then an Employment Relations Specialist for the Charlotte-Mecklenburg County Schools, spoke to Mr. Leardini immediately following the accusations. She falsely informed the teacher that the county had a “no touch” policy. As such, Ms. Cunningham suggested that if Mr. Leardini resigned then there would be no investigation and if he did not resign then he would be terminated; Mr. Leardini resigned. Ms. Cunningham subsequently noted that Mr. Leardini “resigned in lieu of dismissal,” he was “not eligible for rehire,” and she forwarded a case summary to the police. The local district attorney charged him with misdemeanor assault and a judge ultimately acquitted Mr. Leardini of two charges in August 2006.

Mr. Leardini filed a federal lawsuit against the Charlotte-Mecklenburg Schools and Ms. Cunningham stating that Ms. Cunningham’s false statements coerced him into resigning without a hearing. In February 2012 the case went to trial and a jury awarded Mr. Leardini over one million dollars for the loss of his career. The school district appealed the decision on the basis that Mr. Leardini resigned “voluntarily.” In a settlement reached August 24, 2012, the district agreed to pay Mr. Leardini $680,000 and change his record to “voluntary resignation.”

This case should be a cautionary tale to any employer when they receive complaints. It is not an appropriate response to force or suggest that an employee should resign in an effort to handle a matter quickly. It is always in the best interest for an employer to conduct a though investigation, which would include sharing enough information about the allegations so that the subject may respond, and conclude whether or not there has been a violation of policy. Allowing an employee to resign in lieu of conducting a workplace investigation seems like a logical, or easy, response but in this instance it came back to really hurt the school district both monetarily as well as in reputation.