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.

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

Jury Awards Lab Technician $2.14 million in Whistleblower Case

In yet another sign that whistleblower claims in the healthcare industry are on the rise, a New Jersey jury awarded over $2 million to a medical lab technician who claimed he was terminated following a whistleblower complaint. The case involved claims under the New Jersey Conscientious Employee Protection Act (CEPA), a state whistleblower law with several health-specific components that generally bars employers from taking retaliatory action against an employee who makes a good-faith complaint regarding illegal employer conduct.

According to the complaint, the plaintiff was a hematology technician at a medical center who alleged that he had been terminated after complaining to upper management and human resources about improper blood bank staffing and management procedures. The plaintiff also complained about his supervisor’s alleged insufficient credentials to supervise the blood bank. The plaintiff further alleged the lab was not properly covered with appropriately skilled employees during all shifts, and that these practices were illegal under New Jersey law.

Following his complaints, the plaintiff claimed that despite having an “essentially unblemished” record over his 20-year employment with the medical center, he was “repeatedly disciplined, counseled, written up and otherwise dishonestly micromanaged” by his supervisor (about whom he had complained to upper management) before being terminated approximately two months after he first made a complaint. The Superior Court of New Jersey rendered a unanimous eight-member jury awarded the plaintiff $80,640 in lost wages, $60,000 for pain and suffering, and $2 million in punitive damages.

Managers Supervising While Performing Non-Exempt Tasks Are Non-Exempt

Safeway stores employ assistant managers who supervise many employees and have responsibility for hiring, supervising, budget compliance, etc.  But the stores' "operating budgets" and other policies allegedly require assistant managers to work the cash register and perform bookkeeping duties at times.  The assistant managers can supervise associates while "multi-tasking" / working the checkout line.

The plaintiff was an assistant manager. The trial court found she worked about 54 hours a week, and spent a great deal of time at the check stand and performing bookkeeping tasks, even though she was able to supervise the store simultaneously.  An advisory jury concluded that Safeway did not prove she was exempt.  The trial court instructed the jury that it should consider the primary purpose for "mixed" activities – those that involved both non-exempt work and supervision.

The court engaged in a detailed analysis of federal regulations, the wage order, and California case law. The bottom line is this:

The federal regulations cited in Wage Order 7 expressly recognize that managers sometimes engage in tasks that do not involve the "actual management of the department [or] the supervision of the employees therein."  In those circumstances, the regulations do not say, as Safeway would have us hold, that those tasks should be considered "exempt" so long as the manager continues to supervise while performing them. Instead, the regulations look to the supervisor’s reason or purpose for undertaking the task. If a task is performed because it is "helpful in supervising the employees or contribute[s] to the smooth functioning of the department for which [the supervisors] are responsible" the work is exempt; if not, it is nonexempt.

The court also found that when the company's expectations regarding the budgeted non-exempt hours, production standards, etc. virtually or expressly require the exempt manager to take on non-exempt tasks, the employer cannot argue that the employee did not live up to its expectations by performing non-exempt work.

So, employers, "working"/floor management, leads, etc. are more likely to be classified as "non-exempt" after this opinion, particularly when these managers are performing duties that non-exempt workers are simultaneously performing.  

Factoids

• 12% of workers declared bankruptcy and 11% sold or foreclosed their home to cover unexpected out-of-pocket heath care expenses.
• The #1 cause of bankruptcy is due to medical expenses (now greater than credit card bills or unpaid mortgages).
• By 2014, 36% of workers will be “millennials” (born between 1977 and 1992).
• 55% of workers 35 and older negotiate an initial job offer while only 45% or workers 18 to 34 do so.

Quotes

“Be quick, but don’t hurry.”
~John Wooden~