Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

 

ABC Cake Shop & Bakery Settles Sexual Harassment Suit for $220,000

The ABC Cake Shop & Bakery in Albuquerque, which is owned and operated by Early Bird Management Group, LLC, has agreed to settle a sex discrimination lawsuit filed by the EEOC.

The EEOC's lawsuit charged that an owner of ABC subjected female employees, including some teenagers, to sexual harassment.  The sexually offensive conduct included sexual comments, innuendo and unwanted touching. The EEOC's suit also alleged that some women were forced to quit their jobs because of the sexual harassment.

 

At least 19 women are expected to receive relief through the consent decree settling the suit.  In addition to the substantial monetary relief, the decree prohibits ABC from further discriminating or retaliating against its employees and requires it to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation.  ABC also agreed to provide the harmed women with letters of reference and apology letters.  Finally, ABCs must also provide its employees with anti-discrimination training and notice of the settlement.

 

Employers cannot sexually harass their employees. They must comply with federal and CA law that requires them to maintain workplaces where employees are not subjected to illegal sexual harassment or forced to quit because of it.  Given these difficult economic times, women should not be forced to choose between intolerable abuse and making a living for themselves and their families.

 

CA Court Affirms that Customer Lists Can Qualify as Trade Secrets

Wanke, Industrial, Commercial, Residential, Inc. v. Superior Court: In Wanke, the appellate court affirmed that under some circumstances, a company’s customer list can qualify as a trade secret. Two former employees of Wanke, Industrial, Commercial, Residential, Inc. who had signed confidentiality agreements with the company as a condition of their employment, left Wanke and formed their own competing company. Wanke sued the former employees, alleging that they had misused and misappropriated Wanke’s confidential information to improperly target and recruit Wanke’s customers. The parties resolved the action by entering into a settlement agreement that included a stipulated injunction prohibiting the former employees from contacting or soliciting any person on Wanke’s customer list for the purpose of gaining any of their business.

 

The appellate court held that the injunction could apply only to jobs undertaken or proposed to be undertaken for the particular customer while the defendants were employed by Wanke. Only on those jobs could the defendants be said to be using information that they learned while employed at Wanke to identify customers with particular needs or characteristics that would qualify as trade secrets.

 

When determining whether customer lists are trade secret, a court’s analysis will consider factors such as whether the list was compiled with substantial effort and expense, whether the customer identities are public or commonly known, and the sophistication of the customer information, including whether it includes key contacts, special customer requirements, ordering history, billing rates, and payment terms. 

 

Note: Employers should make reasonable efforts to maintain the secrecy of such information by limiting its disclosure, restricting public and employee access to the information, labeling the information confidential, and requiring employees to sign confidentiality agreements that prohibit the use or disclosure of such information.

 

EEOC Obtains $5 Million Settlement in ADA Pattern and Practice Lawsuit

The EEOC reported that Interstate Distributor Company, a trucking firm, agreed to pay $4.85 million to settle a lawsuit alleging pattern and practice violations of the Americans with Disabilities Act. The lawsuit claims Interstate maintained a “no restrictions” leave policy in which employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation. The lawsuit and sizeable settlement raises concerns for employers regarding potential liability arising from personnel policies.

 

The EEOC’s position regarding leave policies is nothing new. The federal agency has long-held the position that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability. Over the past couple of years, the EEOC has been aggressively pursuing this legal theory in court. Statutory and regulatory amendments to the ADA beginning in 2009 that redefined and expanded the scope of the term “disability” have made it easier for the EEOC to pursue class-based disability discrimination claims such as those raised against Interstate. The most recent settlement is a reminder that aggressive investigation and enforcement of the ADA remains a high priority for the EEOC.  

 

The settlement is also a reminder that outdated personnel policies can expose an employer to a substantial amount of potential liability. Federal agencies such as the EEOC, NLRB and DOL continue to target systemic violations of the federal law as their highest enforcement priorities.

 

The easiest way for an employer to find themselves on the wrong end of a costly investigation, charge or lawsuit is to maintain a policy that a federal agency deems unlawful. Lawsuits based on organization-wide policies are particularly problematic because they are susceptible to large-scale nationwide class allegations. Employers are encouraged to periodically revisit their personnel policies in light of the present climate of agency enforcement. Employers should further make sure that outside agencies responsible for administering human resources functions such as leave requests or workers compensation utilize current and best practices.

 

 

Factoids

• 40% of people needing Long Term Care are under 65.
• 69% of drivers talked on a cell phone within the last 30 days. 31% have read or sent text or email while driving.

 

Stay Interview Questions

• Why do you stay at this company?
• If you have been contacted by a headhunter why have you not been interested?
• What are the things that you enjoy most about your job?
• If the company could do anything better, what would it be?

 

According to Glassdoor, the most influential factors for accepting a job offer are:

• Salary   73%
• Location/commute:       55%
• Career-growth opportunities     30%
• Company reputation 17%

 

Quotes

Maybe this world is another planet's Hell.

– Aldous Huxley (1894-1963)