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.

 

November 19, “Human Resources Issues for Business Owners” hosted by Simjee Periodontics and Cool Smiles Orthodontics.

 

November 20, “Where's the Strategy in Your Strategic Plan?" hosted by the Irwindale Chamber of Commerce.

 

Full Day Workshop on January 16: Start the new year on the right “employment law” foot! Click on HR4U 101 Workshop for more details.

 

Employers Must Retain Electronic Records

Anthony Ramirez worked for Millard Refrigerated Services Inc. at its northern Illinois plant with a co-worker, A. Samson Pillay. Millard operated a computerized labor-management system, or LMS, that tracked employee performance. Initially, Ramirez was told he performed his job satisfactorily, but was discharged one month after his hire when an official learned he had sustained an injury at a previous job. Pillay was also dismissed, but was not provided a reason.

 

He alleged he was fired for protesting discrimination against Ramirez. Ramirez and Pillay joined their lawsuits in the U.S. District Court with Ramirez filing under the Americans with Disabilities Act. Pillay argued that Ramirez’s LMS numbers were manipulated. Before Pillay filed a lawsuit, he sent Millard a demand letter and both Pillay and Ramirez sent preservation notices to Millard’s general counsel, specifically referring to documents regarding Ramirez’s productivity.  

 

In defense, Millard relied on the LMS score as a justification for Ramirez’s discharge but admitted that the underlying data were automatically deleted within one year. The court found that Millard acted in bad faith in failing to prevent the LMS from automatically overwriting data that it relied upon to justify Ramirez’s discharge. As a result, the court granted Pillay’s request for a jury instruction that the jury could make an adverse inference against the employer based on its destruction of information related to Ramirez’s performance if the company caused the destruction of data.

 

Note: Employers should create a data-retention policy that describes generally how it will retain such data, and limit when such records can be deleted. Also, when a current or former employee raises a claim of unlawful conduct, the employer should preserve its records. You should never destroy records before the required time to maintain such records.

 

Jury Awards $200,000 against A.C. Widenhouse in EEOC Race Harassment Suit

In a legal victory for the EEOC, a federal jury has awarded compensatory and punitive damages against A.C. Widenhouse, Inc., a Concord, N.C.-based trucking company. 

 

The jury returned a unanimous verdict finding that Contonius Gill and Robert Floyd, Jr., former Widenhouse employees, were discriminated against based on their race, African-American.   The jury also found that Gill was fired in retaliation for complaining about racial harassment at Widenhouse. The jury awarded a total of $200,000 in compensatory and punitive damages to the men.  The court will now decide back pay damages for Gill and injunctive relief.

 

According to the EEOC's lawsuit, Gill and Floyd worked as truck drivers for the company.  From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility's general manager, who was also his supervisor; the company's dispatcher; several mechanics; and other truck drivers, all of whom are white.  The comments and slurs included "n—-r,"  "monkey" and "boy."  Gill testified that on one occasion he was approached by a co-worker with a noose and was told, "This is for you.  Do you want to hang from the family tree?"  Gill further testified that he was asked by white employees if he wanted to be the "coon" in their "coon hunt." 

 

Floyd testified that he also was subjected to repeated derogatory racial comments and slurs by the company's general manager and white employees.   Floyd testified that when he was hired in 2005, he was the only African-American working at the company.   Floyd said the company's general manager told him that he was the company's "token black."  Floyd testified that on another occasion the general manager told him, "Don't find a noose with your name on it," and talked about having some of his "friends" visit Floyd in the middle of the night.   Gill repeatedly complained about racial harassment to the company's dispatcher and general manager and Floyd complained to an owner of Widenhouse, but both men testified that the harassment continued.  

Gill intervened in the lawsuit and in addition to the EEOC's claim of racial harassment, Gill said Widenhouse fired him based on his race and in retaliation for complaining about the racial harassment.  The jury also returned a verdict in favor of Gill on both of his discriminatory discharge claims.

 

The jury verdict  in this case is significant because it is a reminder to employers that race  harassment and racial discrimination cannot be tolerated in the workplace.  "The jury, acting as the conscience of this community, properly found that Widenhouse engaged in conduct that warranted an award of punitive damages.   Such damages are designed to punish Widenhouse's past conduct and to deter this employer, as well as other employers, from engaging in this type of race discrimination.  We are hopeful that this verdict sends a strong message to employers."

 

Factoids

• Healthcare rates are expected to go up by only 6.5% next year (PwC study)
• For 2014 the average salary increase is projected to be 2.9% (was 2.8% for 2013).

 

For both men and women, salary and benefits are the top two most import things when deciding on taking a job. After that it is:

                                   Women                        Men

Location                      44%                             35%    

Advancement              42%                             36%    

Co. financial health     36%                             28%

Workplace flexibility     37%                             26%

 

Quotes

“I think there is a world market for maybe five computers.”

~Thomas Watson (1874-1956), Chairman of IBM, 1943~