A worker for the state of Nevada believes she was the victim of bullying by a supervisor writing on his Facebook page because she took time off under the Family and Medical Leave Act.

According to the Las Vegas Sun:

Steven Zuelke, a unit manager for the state’s unemployment benefits anti-fraud unit, used his personal Facebook page to complain about an unidentified employee he thinks uses too much sick time.

 ”Why is it that for some people FMLA stands for Family Medical Leave Act and for others, it should stand for Fire My Lazy Ass?” Zuelke wrote on his Facebook page last month, hours after one of his employees left work early because she said she was sick.

Zuelke engaged in a lengthy back-and-forth with a group of his Facebook friends — including another state staffer who works in the same division — in which he initially mocks his employee and then rants about how difficult it is for the state bureaucracy to deal with problem workers.

The rant was specific enough that one of the two employees Zuelke has had on FMLA status thinks Zuelke was talking about her.

“I had to read it a few times because I was shocked and confused,” said Sherry Truell, a claims examiner who works in Zuelke’s unit and has used FMLA time extensively this year. “I was being referred to as lazy, an anchor, that other people have to do my work, stuff that related to my personal business … I was extremely embarrassed. My co-workers can see this information.”

 Truell said she used FMLA heavily last month because of what she described as a stress-related medical condition and because her son needed surgery. She added that she usually takes two or three days off a month.

Truell has sought the help of her union representative to address the issue and is considering filing a grievance.

“He’s discussing his employees, his work environment, he has friended multiple other employees in the same office. … There are so many problems with this,” said Priscilla Maloney, labor representative for Truell’s American Federation of State, County and Municipal Employees local.

Instead of offering an apology, Zuelke alludes to his First Amendment’s right to free speech.  He says he did not post during working hours or using a state computer.

Nevada doesn’t have a specific written policy on Facebook use, which could end up costing the state.

If an employee takes legally appropriate medical leave, it is not acceptable for a manager to penalize, demean or harass her. In fact, it is never acceptable for a supervisor to publicly demean and harass an employee.  Most importantly for his employer, however, Zuelke’s actions subject the state of Nevada to potential legal liability.

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the U.S. Department of Labor’s Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and to testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.

If  Zuelke”s  subordinate at the Nevada Employment, Training and Rehabilitation Department actually did take FMLA time, the state may find itself defending a retaliation lawsuit. Also, Zuelke inferred that an employee, who apparently was easily identifiable, engaged in fraudulent behavior by taking sick leave under the FMLA when she was not sick. He published his remarks on a Facebook page for all the world to see.   Hello … defamation, slander, libel.

Research shows that between a quarter and  third of workers are the victims of health endangering bullying, most by a supervisor.  This problem costs American employers billions every year in unnecessary turnover, absenteeism, higher health care costs, and needless litigation.

Suppose a worker says he’s going to “fight” for his rights?

A case in Missouri demonstrates complexities of this issue.  What is a threat? Do intent and the context in which the threat is made matter?   Yes, say the National Labor Relations Board (NLRB) and the U.S. Court of Appeals, District of Columbia Circuit, Washington, DC.

Here’s the background:

Management at Kiewit Power Construction Co. voluntarily permitted electricians to take 15-minute breaks in the morning and afternoon. As the electricians began working farther away from the trailer containing the break room, they left the worksite earlier and the breaks were taking longer. The company, worried about lost productivity, said the electricians could no longer go to the break room, and provided a table and chairs so they could break where they were working.  The union objected and electricians resisted. The company began issuing warnings.

When a supervisor approached a group of electricians and said he was going to write them up, two electricians mouthed off.

One told the  supervisor he had “been out of work for a year,” and that if he got “laid off it’s going to get ugly.” He also said the supervisor “ better bring [his] boxing gloves.”

 The second electrician told the supervisor he had recently been out of work for eight months and repeated the other electrician’s comment that “it’s going to get ugly.”

Both were fired, and their union, the International Brotherhood of Electrical Workers, declined to pursue a grievance..

After an Administrative Law Judge upheld the dismissals, one of the electricians appealed to the National Labor Relations Board, which reinstated both workers, finding that in context their statements were not physical threats but merely figures of speech made in the course of a protected labor dispute. Kiewit Power appealed to the U.S. Court of Appeals, District of Columbia Circuit.

In a split 2-1 decision,  the appeals court on 8/3/11 sided with the NLRB and the electricians.

The majority agreed that a worker could be fired if he or she made a physical threat. They said the employee’s remarks were “intemperate” remarks rather than actual threats.  Also, the  Court reasoned the employer provoked the electricians by picking a public scene that was likely to lead to a quarrel, and that it was reasonable for the employees to respond “briefly, spontaneously, and verbally” to the disciplinary measure.  Importantly, they said,  the electricians did not demonstrate any physically threatening behaviors.

The majority said: “To state the obvious, no one thought that  the electricians were literally challenging their supervisor to a boxing match. Once we acknowledge that the employees were speaking in metaphor, the NLRB’s interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course, is a matter of context.”

To illustrate a  real physical threat,  the majority compared a hockey player dropping gloves to battle another hockey play to Presidential candidate Sarah Palin promising “the gloves are coming off” in the 2008 election.

The majority said the employer’s “subjective perception of an employee’s statement” is not dispositive about what constitutes a threat,  and that it was appropriate for the NLRB to use an “objective standard” consistent with prior decisions.   Furthermore, the majority said it would defeat the ability of workers to unionize “if workers could be lawfully discharged every time they threatened to ‘fight’ for better working conditions.”

The dissent contended the electricians did threaten the management representative and that there was no reasoned basis for the majority’s overturning the original decision of the Administrative Law Judge. “Phrases like “workplace violence” and “going postal” manifest that today’s work setting is often far from calm, especially in precarious economic times … The  Board’s reinstatement—seconded by my colleagues—of employees who openly challenge by threatening language lawful decisions of their employer compels me to observe: ‘So much for industrial peace.’”

The bottom line is that the electricians got lucky!   Almost certainly, an employee who works for a non-union employer, even if provoked, would likely have faced a far different outcome.

What would happen if workplace anti-bully advocates took a different approach?

One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to  permit any worker to sue if subjected to a hostile workplace environment.

Another idea is to approach the problem as an important public  health issue  -  which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.

Advocates for anti-obesity measures took the local approach, with some initial success.  However, industry groups are now finding a way to halt local initiatives, using stealth tactics to erect statewide road blocks.

Public health advocates persuaded some progressive cities and counties around the nation to pass anti-obesity measures, such as requiring restaurants to list fat and calorie content on their menus or to prepare food without unhealthy trans-fats.  The New York Times reported June 30, 2011 that  industry groups are acting pro-actively to quash these anti-obesity efforts. and they are using stealth tactics.

The Times notes that Ohio’s 5,000-page state budget contained sweeping limitations on local government control over restaurants.  Florida  adopted similar limits, tucked into a bill that largely concerned amendments to state regulations on vacation rentals. Other states with limits include Alabama, Georgia, Tennessee, and Utah. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.

Not surprisingly, state restaurant groups are leading the charge for the preemptive state legislation.   State legislators who sponsored preemptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

The Los Angeles City Council has banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

The Ohio law gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”  The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products.

One of the fundamental concepts of the U.S. Constitution involves the importance of state’s rights – the idea  is that real change and progress comes from experimentation among the states and not through a federal bureaucracy. It doesn’t take a PhD. to see that this concept also is relevant to states, which tend to  adopt progressive statewide legislation in response to local initiatives.   I’d rather be guided by the framers of our U.S. Constitution than self-interested industry groups. Wouldn’t you?

The state-by-state campaign to adopt workplace anti-bully legislation began in 2003 in California and has encountered steady opposition from business groups, who apparently are largely ignorant about the enormous toll bullying exacts on the employer’s bottom line.   This, despite the fact that the Workplace Bullying Institute is pushing a proposed Healthy Workplace Bill that is considerably weaker than legislation adopted in other industrialized countries around the world. American workers deserve strong protection from bullying in the workplace, which causes health problems and destroys lives and families.

* The new state laws limiting public health measures will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

Click here to read a complaint filed in U.S. District Court last week by Nicholas Spaeth, 60, the former state attorney general for North Dakota,  that describes a scenario so egregious that, if true, one can only hope the perpetrators find themselves on the job market soon (very soon) facing employers just like themselves.

The defendant is the Michigan State University College of Law, East Lansing, Michigan.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school. He has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

Let’s just say the guy has stellar qualifications.

The complaint states the law school ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. All three allegedly had far less experience both qualitatively and quantitatively than Spaeth. In fact, the complaint states that one of the new hires had no experience as a legal practitioner.

The applicant who was hired by Michigan to teach in Spaeth’s area of speciality, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General,  is a former general counsel of H & R Block.

Going through an experience like the one described by Spaeth would make any job applicant feel like he was whacked upside the head with a two-by-four plank.

And it is always worse when a law school  discriminates because a law school educates students who will one day be the attorneys and judges who are enforcing our nation’s anti-discrimination laws. Don’t these guys teach employment law?  One shouldn’t jump to conclusions though.  We’ve only heard Spaeth’s side of the story. It will be interesting to see Michigan’s answer to Spaeth’s complaint.

[According to Wikipedia, Spaeth is the only statewide, elected official in North Dakota's history not to be endorsed by the National Rifle Association.  He is a life-long advocate of gun control.]

The dean of Michigan State University College of Law is Joan W. Horwath, who is described as an expert on gender and the death penalty and a leader in legal education through work with the Association of American Law Schools, the American Bar Association, and the Society of American Law Teachers.  She is quoted by the Blog of the Legal Times as stating the school has not yet received notice of Spaeth’s complaint.  She added: “When or if one comes our way it will be a false accusation because we do not and have not discriminated on the basis of age.”

Attorneys Lynne Bernabei and Alan Kabat of Washington’s Bernabei & Wachtel represent Spaeth, who previously filed complaints with the U.S. Equal Employment Opportunity Commission against more than 100 law schools that also did not offer him an interview at the Association of American Law Schools’  Faculty Recruitment Conference.

• Why is it so often that the best people are stuck in the middle and the people who are running things—the leaders—are the mediocrities? Because excellence isn’t usually what gets you up the greasy pole. What gets you up is a talent for maneuvering. Kissing up to the people above you, kicking down to the people below you. Pleasing your teachers, pleasing your superiors, picking a powerful mentor and riding his coattails until it’s time to stab him in the back. Jumping through hoops. Getting along by going along. Being whatever other people want you to be …Not taking stupid risks like trying to change how things are done or question why they’re done. Just keeping the routine going.
• We have a crisis of leadership in this country, in every institution. Not just in government. Look at what happened to American corporations in recent decades, as all the old dinosaurs like General Motors or TWA or U.S. Steel fell apart. Look at what happened to Wall Street in just the last couple of years …
•  … our overwhelming power and wealth, earned under earlier generations of leaders, made us complacent, and for too long we have been training leaders who only know how to keep the routine going. Who can answer questions, but don’t know how to ask them. Who can fulfill goals, but don’t know how to set them. Who think about how to get things done, but not whether they’re worth doing in the first place.
• … What we don’t have are leaders. What we don’t have, in other words, are thinkers. People who can think for themselves. People who can formulate a new direction: for the country, for a corporation or a college, for the Army—a new way of doing things, a new way of looking at things. People, in other words, with vision.
• …  true leadership means being able to think for yourself and act on your convictions.

• Thinking means concentrating on one thing long enough to develop an idea about it. Not learning other people’s ideas, or memorizing a body of information, however much those may sometimes be useful. Developing your own ideas. In short, thinking for yourself. You simply cannot do that in bursts of 20 seconds at a time, constantly interrupted by Facebook messages or Twitter tweets, or fiddling with your iPod, or watching something on YouTube.

Now Minnesota’s biggest school district is being sued for allegedly enacting policies that discriminate against homosexual students in its Anoka-Hennpin School District. As a result, the lawsuit alleges, lesbian, gay, bisexual and transgender students and those “perceived as LGBT have been subjected to a constant torrent of slurs and have been physically threatened or attacked by peers.”  See complaint here.

The suit objects to the school district’s “Sexual Orientation Curriculum Policy,” which allegedly prohibits staffers from acknowledging the existence of LGBT people and, according to the suit, prevents teachers from effectively intervening when they see bullying taking place.  The policy states: “Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

The lawsuit states three distinct causes of action:

•  U.S. Constitution Amendment XIV, Denial of Equal Protection on the Basis of Sexual Orientation

Defendants, acting under color of state law, have deprived plaintiffs of the rights, privileges, or immunities secured by the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, in that Defendants, without justification, have Treated plaintiffs differently than other similarly situated students and student groups on  basis of actual or perceived sexual orientation.

• Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.Discrimination Based on Sex 

The School District and each school within the District attended are recipients of federal financial assistance. The acts and omissions of Defendants violated Plaintiffs’ rights under Title IX by discriminating on the basis of sex. Defendants had actual notice that harassment based on sex was so severe, pervasive, and objectively offensive that it created a hostile climate based on sex that deprived Plaintiffs of access to educational programs, activities, and opportunities.

[Note: Title IX states that "no person" (which includes workers!) in the  United States "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ... ." ]

•  Minnesota Human Rights Act, Minn. Stat. § 363A.13-.14 Discrimination on the Basis of Sexual Orientation

The acts and omissions of Defendants violated Plaintiffs’ rights under the Minnesota Human Rights Act by discriminating against their full utilization and benefit of an educational institution on the basis of sexual orientation. Defendants aided, abetted, and incited discrimination against Plaintiffs based on sexual orientation that prevented her full utilization of and benefit from an educational institution.

The suit was brought by the Southern Poverty Law Center, the National Center for Lesbian Rights, and the law firm of Faegre & Benson.

Earlier this year, National Public Radio justified its controversial dismissal of commentator Juan Williams on a supposedly independent investigation by a DC law firm paid by NCR.  Williams had made inane comments in his role as a talking head about his fear of individuals dressed in Muslim garb on planes. In the backlash over Williams’ dismissal,  NPR Chief Executive Officer Vivian Schiller lost her job.

At that time, I issued a challenge that, alas, drew no takers:

 Does anyone know of a so-called independent review by a law firm that found the employer was completely un-justified in its actions (and thus potentially liable for serious monetary damages). I suspect that would be the last time said  firm was hired to do an independent investigation.  Frankly, I’m no fan of Juan Williams but  come on NPR … Adopt clear policies and processes for NPR employees and apply them uniformly. 

 Now, Rupert Murdoch and his son, James, are  blaming a growing international scandal involving phone hacking and police payoffs on advice from Harbottle & Lewis,  former counsel to News International, its U.K. subsidiary. The company has publicly accused Harbottle of botching an initial investigation into the events at the heart of scandal.  Harbottle refutes the accusation.  News International reportedly denied Harbottle’s request to waive client confidentiality that the firm said would clarify its role in the controversy.

As they say, hindsight is 20-20.  However, it seems obvious that the best way for employers to handle future complaints is to act before the problem occurs. Pro-actively adopt clear, ethical, and fair policies and enforce these policies uniformly, from the office of chief executive to the janitorial staff.

In this country, anyway, it’s not easy to blame it on the lawyer or the law firm. A lawyer can break lawyer-client confidentiality”to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client … ” ABA Model Rules of Professional Conduct Rule 1.6 .

On July 10, 2011, Rupert Murdock  shut down  Britian’s top selling newspaper,  News of the World, because of a cell phone hacking scandal. A Reuters story describes the bullying culture of the publication, which affected both employees and outsiders.  Here are some excerpts from:  Special Report: Inside Rebekah Brooks’ News of the World:

•  ”It was the kind of place you get out of and you never want to go back again.” That’s how one former reporter describes the News of the World newsroom under editor Rebekah Brooks, the ferociously ambitious titian-haired executive who ran Britain’s top-selling Sunday tabloid from 2000 to 2003.  (Note – Brooks was arrested in London over the weekend. PGB)
•  A fifth former News International employee who worked with News Of the World journalists at this time said its reporters were under “unbelievable, phenomenal pressure”, treated harshly by bosses who would shout abuse in their faces and keep a running total of their bylines. Journalists were driven by a terror of failing. If they didn’t regularly get stories, they feared, they would be fired. That meant they competed ruthlessly with each other.
• Reporters say they lived in constant fear of byline counts which weeded out those who had filed the fewest stories. “They were always seeking to get rid of people because it was a burn-out job. Their ideal situation was you work your nuts off for six months and they let you work there another six months,” said the general news reporter. “Every minute you spent there you felt that your employer hated you.”
• Charles Begley, an ex-News of the World reporter, has spoken out about the bullying culture. He said he felt close to breaking-point when, three hours after the Sept. 11, 2001 attacks on New York’s twin towers, he was ordered to appear at the paper’s daily conference dressed in a Harry Potter outfit he had been given to help the tabloid capitalise on the craze for the books about the boy wizard.  “At that time, we were working on the assumption that up to 50,000 people had been killed,” he said then, according to tapes published in 2002 by the Daily Telegraph of a conversation between him and assistant news editor Greg Miskiw. “I was required to parade myself around morning conference dressed as Harry Potter.” It was during this conversation that Miskiw made a comment that was to become notorious in Britain: “That is what we do — we go out and destroy other people’s lives.”
• Matt Driscoll, a sports reporter sacked in April 2007 while on long-term sick leave for stress-related depression, was later awarded 800,000 pounds ($1.3 million) for unfair dismissal. The employment tribunal found that he had suffered from a culture of bullying led by then-editor Coulson.  “Nobody ever felt secure there and that’s the way they liked it. On the edge, scared, insecure,” said the general news reporter.
• Editors would then often use damaging stories as bargaining chips, trading them for future access to public figures or to build relationships with stars. Often, the paper would drop the story they had altogether and publish something more sympathetic.”It would be things like: ‘We know you were sleeping with your secretary but we’ll keep it out of the paper if you give us the story about how you were given away as a child,” said the long-term freelancer. “They used to call stories ‘levers’,” said the general news reporter. “They weren’t necessarily interested any more in using the story you’d proved or got past the lawyers. They were interested in using the story as leverage in order to get a different story.

Meanwhile, according to the Washington Post, the scandal is now threatening  Murdoch, who built his publishing empire over six decades. The Post says  independent directors of New York-based News Corp. have begun questioning the company’s response to the crisis and whether a leadership change is needed.

The Fair Employment Opportunity Act of 2011, H.R. 2501, would keep both employers and recruiters from refusing to consider unemployed workers for available positions, and would prevent them from including language in any job postings indicating that the unemployed should not apply, the representatives said in a statement.

It is morally reprehensible that employers discriminate against unemployed people.  Workers may have good reason to quit their jobs or they can be fired through no fault of their own.    At present there is no law that specifically addresses workplace bullying, which overwhelming research shows causes the target to suffer potentially serious physical and psychological damage.

A 2007 poll by Zogby International on behalf of the Workplace Bullying Institute found that 64 percent of targets of workplace bullying quit or are fired.  When employers are notified of bullying, most (62%)  do nothing or make matters worse. Why? The vast majority of bullies are bosses (72%) who enjoy support from executive sponsors, peers and human resources.

Specifically, the proposed law would make it illegal for employers and employment agencies to do things like:

•  consider unemployment status and history in making hiring decisions;

• publish in job posting that unemployed workers can not apply; and

• block unemployed people from accessing information about job openings.

The only time it would be lawful for an employer to consider the unemployment status or history of applicant is “where an individual’s employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance of the job that is being filled.”

PGB

The New York Daily News reports that Archie Comic Publications is suing co-Chief Executive Officer Nancy Silberkleit  for alleged bullying.

Meanwhile, Oregon.Live.com published an article in last year quoting Silberkleit, a former third grade art teacher, as stating she was stunned by the old boys’ network she encountered upon assuming the post of co-CEO following the 2009 death of her husband, Michael Silberkleit, the son of an original co-founder of the company, Louis Silberkleit.

“I’m a mother coming into a very male-oriented business,” Silberkleit told Oregon Live. “I’m not getting any support. I felt very alone.”

The lawsuit seeks to bar Silberkleit from the company’s Westchester, NY,  headquarters and to stop her from representing the company at Comic Con International later this month in San Diego.

The lawsuit alleges Silberkleit  is a foul-mouthed tyrant prone to outbursts about male genitalia and that several employees are fearful of her “erratic” behavior and bullying.

Several employees allegedly complained about Silberkleit’s antics, including an incident in 2010 in which she is said to have asked if sex toys were stored in an office safe, adding, “I need to adjust my balls.”

In April 2010,  Silberkleit is said to have walked into a meeting  “and referring to a book yelled out ‘PENIS, PENIS, PENIS, PENIS”” and then said, “My balls hurt.”

Her co-CEO is Jon Goldwater, the son of another co-founder of the company, John L. Goldwater. The company was founded in 1939.