“Comparable worth” – Apples & Oranges?

California  has taken a big leap in an effort to lessen the “gender gap”. The numbers show a gap between what men earn on average, and what women earn, on average. Nationwide, female wage, on average, is 78% of the male wage. In California, the difference is a little less: the female average is 84% of that of men;  so, the “gap” is 16%. There has been a lot of debate about these numbers and what they mean. Some people point to the numbers as manifest proof that women are paid less than men. Others respond that these numbers fail to take into account that women and men still do different jobs. Look at the courts. There are many more women judges than there used to be (yeah!); but, still, there are substantially more men on the bench than women. And, there are nowadays some men who work in administrative positions, jobs that used to be almost entirely female (yeah to that development, too). But, there are still a lot more women working at the court in administrative positions than men. But, the judges make about $180,000.00 per year. The clerks make less than half that. So, the “gender gap” in the courts is much greater (over 50%) than the “gap” overall (16%). Much the same is still true in law offices, but there is a twist. When I was in law school (I graduated in 1980), there were very few women in the school. Maybe 10 out of 200.  Nowadays, law school student bodies are roughly half and half (yeah!). Nonetheless, it takes a long time of equal student bodies to equate to equal staffing levels. Law offices still feature more men than women as lawyers; and that is particularly true among the ranks of older attorneys, because the trend towards more women in law schools was gradual and recent. Conversely, the support staff of secretaries and paralegals and receptionists are, generally, heavily female, although, again, there are more men now occupying these positions (yeah!). But, attorneys, you will not be surprised to hear, make more money than secretaries.  Like three or four times, or more. So, if you looked at “men v. women” in law firms, you’d see, in most cases, a “wage gap” of LOTS more than 16%.

Courts, and law firms, and doctors’ offices, are extreme examples. A lot of the “gender gap”, though, is more subtle than that. In the 1980’s, there was litigation in which women sued employer’s under the Equal Pay Act, but the claims were that women occupied traditionally female occupations (such as secretaries) while men occupied traditionally male dominated jobs (such as maintenance workers), and the complaint was that the people changing the light bulbs (men) made more than the people typing the letters (women). The plaintiffs claimed this was against the law because the law required “equal pay for COMPARABLE work”. How did they compare secretaries to maintenance staff?  Well, easy: they both worked in the office. They both had, on average, about the same levels of education. The job REQUIREMENTS for both jobs were basically the same (a high school diploma). And, the argument went, the jobs had comparable WORTH – They both performed support functions tangential to the main task that was necessary. The plaintiffs lost those cases, because, ultimately, the courts decided that the Equal Pay Act required equal pay for EQUAL work – so, people working in the same workplace, doing the same job, should be paid the same; but, the courts said, we can’t compare apples and oranges; the law doesn’t require employers to pay maintenance workers the same as secretaries, even if the two jobs were “dominated” by different genders.

Now, California has passed a new law. The express purpose of the law is to address the gender gap. Labor Code Section 1197,5 now provides:

 (a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:
(1) The wage differential is based upon one or more of the following factors:
(A) A seniority system.
(B) A merit system.
(C) A system that measures earnings by quantity or quality of production.
(D) A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.
This is going to be big trouble for California employers. The secretaries are going to be banging on the courts’ doors again, claiming that being a secretary in an office is “substantially similar” to being a maintenance worker when you consider “a composite of skill, effort and responsibility,” given that they are performed under “similar” working conditions. This language is loose enough to compare apples and oranges. Then the employer is going to have to meet its burden of proof to justify the pay disparities, pay disparities that really were never the result of rationale decisions, but often the result of tradition. Why should a secretary make less than a maintenance worker? Why should a woman who works the front desk make less than the guy who rotates the tires? Explanations that may seem obvious to one person may carry no weight at all with a woman who earns 84 cents on the dollar. This problem is NOT going away.

Bully for you!

I’ve seen today some news headlines announcing that a Microsoft employee in Texas (why is it always Texas?) has been awarded $2million to compensate him for “bullying”. Here’s a link: titled, “Microsoft to pay $2 Million in Workplace Bullying Case”.  I’m sure this will cause phones to ring in  the offices of lawyers who represent workers in employment disputes (like me). The callers will be relating very sad stories that add up to “a lot of work places are just like Junior High School” – they are run by people who are just plain mean spirited, and they call you names and physically intimidate you and make you not want to get up out of bed and go to work. And, often, the co-workers are not better.

I have often had to explain to callers with this type of story that there is not much I can do to help them. As the US Supreme court has observed, “Title VII [the federal law that outlaws discrimination on the basis of race, sex, religion, etc.] is not a workplace civility code.”  What that means is that, unless the conduct includes derogatory references to race or sex or whatever, or unless you can prove that seemingly neutral comments are disproportionately directed to minorities, women, etc., the rude, denigrating, bullying behavior is not against the law, and the courts want no part in stopping that kind of conduct in the work place.  As a result, victims of such conduct have little or no remedy. About the best you can do is, if the conduct causes physical symptoms, that’s an industrial injury and you are entitled to workers compensation benefits.

This Microsoft “Bullying” headline seems to suggest that the worker has a judgment for $2 Million because he was “bullied” at work. Read the article carefully, though: the mean conduct was, the worker contended (and proved) the result of his having had an affair with a coworker who later became a manager, and used her position to punish the victim. That’s unlawful sex discrimination. Also, he claimed (and his claims were believed) upper management put him on the List of People Whom We Do Not Like (there are other more colorful terms more often employed for that list) because the worker complained about a senior manager’s comments denigrating the Japanese. That’s unlawful retaliation for protesting national origin discrimination. All that is conduct prohibited by Title VII anti-discrimination laws. Putting the label of “bullying” on it is just smoke. That the conduct can be labeled “bullying” doesn’t make it illegal; and if the conduct isn’t based on sex or religion or one of the other protected classes, it’s not illegal even if it is properly labeled “bullying”.

Maybe we SHOULD have laws prohibiting “bullying”. But we don’t, yet.





Mis-Classifying Employers: Be Careful What you ask for – remember the “workers compensation bargain”

Not long ago I posted an item about a court case in which an employer wanted to treat its delivery workforce as contractors; but, the employer’s effort was ruined by reality – a major retailer cannot give up control over the details of the work when it comes to deliveries.  It has to dictate exactly when and where the deliveries are going to take place, and it has to be sure that the people making the deliveries don’t scare the customers. So, inevitably, the employer insists on making the workers subject to rules about everything from what they wear to how they cut their hair. /2014/07/employee-or-contractor-a-new-case-stresses-the-right-to-control/  The result was that a Court ruled that the workers were “employees”, not “contractors”, leaving the employer subject to substantial liability. Since that post and the case that prompted it, there have been a couple of other high-profile examples. We are going to see more and more of them because, on the surface, the cost savings for employers in “contracting out” are huge. There is an army of plaintiff’s attorneys out there making a fortune “catching” these ill-conceived efforts. I bid them well!

But, I want to dust off my crystal ball and make a prediction, which is that what will really stop this trend is personal injury lawsuits by injured workers.  Some worker is going to get hurt doing work. Happens all the time. And, often, some negligence on the part of the employer is at least partly responsible for the injury. Maybe the truck used to carry the goods, which the employer insists the “independent contractor” use, has been poorly maintained. Maybe the “dolly” the employer insists the “independent contractor” use to carry goods from the truck to the customer’s home has a loose strap. Maybe the worker gets told to drive in very bad weather. Maybe the worker gets told to “work faster”. Many workplace accidents can at least plausibly be attributed to some negligence on the part of the employer.

If those hurt workers are employees, however, they cannot sue their employers. Why not? Because they are covered by workers compensation insurance, and the same laws that require employers to provide workers compensation insurance to their employees forbid employees to sue their employers for negligence. Workers compensation pays for the necessary health care and treatment for the on-the-job injury, and for some portion of the lost wages attributable to the injury, and that insurance pays those benefits without regard to fault on the part of the employer. But, the flip side is that the employee who is injured on the job owing to some negligence of the employer cannot sue the employer in a tort claim. They cannot seek to recover from the employer the portion of lost wages that workers compensation does not pay, or for the value of the physical pain and suffering, or the emotional distress, that was caused by an on-the-job accident.

This trade off of limited benefits without regard to fault against prohibiting the injured employee from recovering their full loss is known as “the workers compensation bargain.” And, nowadays, it is a good bargain for employers. When workers compensation benefits were first required by law, that was actually to the great benefit of workers. In those days (the early 20th Century), injured workers, like all injured people, could not win a tort suit if they were, even in the smallest degree, responsible for their own accident. This was known as the “contributory negligence” doctrine. “Contributory negligence” was a complete defense to a tort claim.  So, if the injured person was 1% responsible for the accident, their claim was 100% barred. This was a substantial barrier to all tort claimants, but it was practically a complete bar to claims by injured workers, because almost no industrial accident occurs in which the injured employee is not responsible in at least some small way for the event. So, the “workers compensation” bargain was a good one for workers at that time, generally speaking. Employers fought against the requirement that workers compensation insurance be required as a matter of law, because the cost of the insurance was large in comparison to the amounts they would have to pay out in the very small number of instances in which injured employees would be able to recover notwithstanding the contributory negligence doctrine.

Nowadays, however, things are different. In the late-1970’s, courts all over the country began overturning the “contributory negligence” doctrine, and replacing it with the doctrine of “comparative fault”. Under the comparative fault doctrine, the fault of the injured person does not bar a claim against another person who also, through their negligence,  bears some of the fault for the injury. Rather, the negligence of both parties is taken into account, and numbers reflecting fault are allocated among the parties. So, if an accident was 50% attributable to the fault of the plaintiff, and 50% attributable to the fault of the defendant, the plaintiff will still be able to recover against the defendant, although the damage award to the plaintiff will be reduced by 50%. In the context of accidents at work, this generally means that, but for the workers compensation bar, the injured employee would, in most cases, be able to recover against the employer in tort.  The recovery of the worker would be reduced proportionally to their fault, but they would still recover. And the amounts would be large in many cases, because the loss for the worker would include not just medical bills and some of the lost wages but all the lost wages, the physical pain and suffering, and the emotional distress associated with the workplace accident. So, in these days of high jury verdicts in personal injury cases, the workers compensation bargain is now tilted in the employer’s favor. That employees cannot sue their employers in tort for personal injuries arising out of work place injuries is a great benefit to employers.

Let us return to the subject of “mis-classification”. Again: to cut corners, employers are taking workers who were formerly employees, firing them, and re-engaging them as “independent contractors”. Doing this saves all sorts of money for the employer for things like overtime, and minimum wage, and breaks, and workers compensation insurance. But I don’t think employers have thought that last one through: if the “independent contractors” aren’t “employees”, and they are not covered by workers compensation insurance, then, when they get hurt on the job (as they inevitably will), they are going to be able to bring “third-party tort suits” against the company that used to be their employer, but which is now just a “customer”. It hasn’t happened yet, that I have seen. But I think it will.  More and more. And I don’t think waivers by the “contractors” are going to be sufficient to avoid liability. And employers are going to have to re-think this whole scheme of “contracting out”.


Three Gifts Workers Should Stop Giving Their Employers – Part 4: The Gift of Two Weeks Notice

Oddly, a lot of well-intentioned, honorable workers are walking around with the completely erroneous idea that “something” requires them to give an employer two-weeks notice before the effective date of their voluntary termination. There is no legal requirement to do that. It is possible, in some rare cases, that a worker might have signed an agreement in which they agreed to do that; but I don’t think that is at all common. Meanwhile, your employer is walking around with another idea entirely: which is that you are “at will”, meaning you can be fired at any time, with no notice at all, for a good reason, a bad reason or no reason at all. (I’ve published a legal guide on this subject, “The Woes of At Will”, , and, of course, that is the first Gift that you should stop giving your employer.) So, when the employer reacts to the worker’s courtesy in giving notice by firing the worker on the spot, that is unfair, unprofessional, and just plan vicious; but there is no law against it. Many employers believe that two-week period between notice and termination will be the worker’s opportunity to burn up unused sick leave, sabotage projects, infect the office computers with viruses, and pilfer pencils. The employer is more likely to have security frog march you out the door than cover you with thanks for your professionalism in giving notice. One consoling aspect of this reaction from employers, though, is that, while a voluntary quit would ordinarily have made you ineligible for unemployment insurance, being fired for giving notice of intent to quit will NOT make you ineligible. File for your unemployment benefits. I have published a legal guide on that, too.

But, stop thinking that, if you have a new, better job, you owe it to your employer to give two weeks notice. If that is good for you, then do it. If you think your employer deserves that notice by its past treatment of you, then give the notice. If not, your are free to quit without notice. If employers want workers to hang around longer after giving notice, then, fine – they can offer incentives for your continued employment.

Update: I’m starting to see more and more career counselor types cautioning people about giving two-weeks notice.  Here’s an excellent example  If you look at the many public comments to this article, you will see that many people have sad stories to relate as a consequences of giving two-weeks notice; but some insist that workers should still do so. Everyone’s situation is unique.  Maybe you should give notice, maybe you should not. Just think it through, and don’t take either route automatically or reflexively. Good luck!

And, the Award for Most Unnecessary Litigation of the Year Goes to:

A new California Supreme Court case (Paratransit, Inc. v. CUIAB) wins my nomination for “least necessary litigation of the year”.  In that case, a worker was given a disciplinary notice by his employer. The worker disagreed with the facts stated in the notice. The employer instructed the worker to sign the notice to acknowledge receipt. The worker refused, because he disagreed with his employer’s version of the facts, and, he said, he wanted his union rep present. Under the contract, the worker had the right to the presence of the union rep if the purpose of the meeting was “investigative”.  The employer explained 1) you aren’t agreeing with the facts by signing; and, 2) you don’t have a right to a union rep because this isn’t an “investigative” meeting – we already investigated, and we’ve decided to discipline you. We just want you to acknowledge you received this document.”  The employee refused.  Whereupon, the employer fired the worker for insubordination.  The worker then applied for unemployment benefits. The employer opposed that, contending that the workers refusal to obey the instruction to sign the acknowledgment was “willful misconduct”.  The EDD staff agreed – no unemployment benefits. The worker appealed to the next step at EDD: a hearing before an ALJ.  The ALJ agreed with the employer: refusal to obey the instruction to sign to acknowledge receipt was willful misconduct.  No benefits. The worker appealed to the full “Board”. The Board reversed the ALJ, finding that the worker was wrong about the right to have a union rep present, but that the worker’s position was a mistaken position held in good faith, and a good faith mistake isn’t willful misconduct.  So, the Board awarded benefits. Then, believe it or not, the employer could not swallow that defeat: it sued the Board in Superior Court. The Superior Court judge backed the employer – the contract was clear: no right to a union rep unless it was an investigatory meeting, and the investigation was over. So, the worker was being pig-headed, and no unemployment benefits! Then, I am not making this up, the worker appealed the adverse decision in the Superior Court to the California Court of Appeal!  The Court of Appeal agreed with the Superior Court Judge (but it was a split decision).  No benefits!  Then, the worker appealed to the CALIFORNIA SUPREME COURT.  Really.  Well, the California Supreme Court has just recently issued its decision: workers who are fired should get their benefits unless they intentionally act badly, and, since the worker could have been honestly confused (after all, he didn’t have a lawyer with him to read and interpret and advise him as to the meaning of “investigatory meeting” in the collective bargaining agreement), the worker was fired for something less than “willful misconduct”, and he should get his benefits.
For pete’s sake, please take my advice, workers: if your employer instructs you to sign a document that says on its face that you are acknowledging receipt of a document, but not agreeing it is true, SIGN THE #@[email protected]#$#@  ACKNOWLEDGEMENT!  I mean, I’m very happy for the worker who got his unemployment benefits, but 1) the guy got FIRED, not because of the original misconduct, but because he refused to sign the acknowledgment, and, while it is nice he got his unemployment benefits, he didn’t get his job back; 2) because the guy was in a union, and the facts implicated a union prerogative, the union got behind the guy and paid a bunch of lawyers 10’s of thousands of dollars, and maybe much more, to litigate over a very modest outlay in unemployment benefits; but, you just can’t count on that happening for YOU, my friend; and 3) I am sure the employer paid 6 figures of attorney’s fees for this venting of its spleen, and how is that possibly justified in the real world?
You know what’s going on?  EGOS.  The worker, well, his employer gave him an order, and he wants to throw the union in their face. And the employer doesn’t NEED the employee to sign the acknowledgment; the HR person can simply annotate the form, “employee refused to sign”.  Mission accomplished! But, the employer gave an order and, by Golly, heads will roll if the worker gets stubborn! Union Ego v. Corporate Ego, equals the lawyers earn a nice fee.  Dumb dumb dumb.

Three Gifts Workers Should Stop Giving Their Employers: Part 3 – The Gift of Unpaid Overtime

The labor laws permit employers to exempt a broad group of workers, generally white collar workers who earn twice the minimum wage, from overtime laws. “Exempt” workers are free to work more than 8 hours in a day or more than 40 hours in a week without obligating their employers to pay them overtime. That’s a gift. Stop giving it to your employer. Work hard during your work hours. Give it your all. If you feel like you are spending time unproductively, OK, work an extra half hour, or whatever time is necessary for you to be morally certain that you have provided your employer with 40 hours of honest work. And, from time to time, there is going to be some special, emergency project. OK, you’re a team player – pitch in. But, generally speaking, provide employers with what they are entitled to: 40 honest hours. Then, stop.

Labor laws require employers to pay overtime at the rate of 150% the normal wage rate for overtime work. Those laws exist to promote two important policies. First, if not checked, your employer will be happy to work you to death. Working over 40 hours per week has consistently and repeatedly been shown to be bad for physical health and mental well-being. It is contrary to the needs and best interests of your family. Giving the gift of unpaid overtime to your employer is weakening the strong families that are the foundation of our Nation’s middle class. Second, if not checked, employers would much rather hire one person and make that person do the work of two people than to hire two people. So, by legally prohibiting an employer from doing that, the laws promote fuller employment. Giving the gift of unpaid overtime to your employer is undermining the employment prospects of your neighbors. Both of these policies – protecting the health of people and their families, and promoting full employment, apply just as strongly to desk jobs as to heavy labor. If we want a stronger middle class, or if we want to stop the erosion of the middle class, refusing to give employers the gift of unpaid overtime is a step in that direction.

You may be apprehensive that, if you fail to work 50 hours when you are only being paid for 40, your employer will fire you. That is because you are still giving your employer the Gift of At Will Servitude. Refusal to work 50 hours when you are paid for 40 is not “good cause” to fire you.

Perhaps what I am suggesting is not workable for you. You know better than I. But, whatever else you do, you ought to at least keep track of your hours actually worked. Wage and Hour laws require the employer to track carefully the actual time worked of hourly employees. The law does not require employers to track the time of “exempt” workers, because the law doesn’t require employers to pay exempt workers overtime. So the legal scheme contributes to the “invisibility” of employer time theft from exempt employees. But, that doesn’t mean you can’t keep track of your own time so that at least you know how much of your time your employer is stealing from you and your family. And, at annual review time, perhaps your employer would benefit from being informed of precisely how much of your time they have stolen in the year under review.

Perhaps a legislative compromise is in order. In the first place, record keeping of time worked should be required and should be the employer’s responsibility, as it is for non-exempt employees. In that way, at least there will be transparency and acknowledgment that the employer is demanding more than 40 hours of work. For “exempt” employees, perhaps the obligation to pay overtime should not kick in until the employee’s time exceeds 10 overtime hours per month. Perhaps, for exempt employees, the overtime rate ought to be 100%, rather than 150%. Maybe it should be minimum wage; or a dime an hour. I’m open to discussion. But, stop giving your employer your time for free to an employer who won’t even acknowledge that they are stealing your time or keep track of how much they are stealing.

Employee or Contractor? A new case stresses the “right to control”

Workers these days are protected by many laws. Some employers resent that. They would like to operate without being bothered by all those pesky requirements that they pay workers overtime, give them rest breaks, that sort of thing. So, they would like to deal with “independent contractors” instead of employees. But, then, they find themselves faced with another problem: lack of CONTROL. Employers are control freaks. They can’t help themselves. The result is sometimes a ludicrous situation in which the employer “classifies” a worker as a “contractor”, but insists on the right to dictate when the worker can go to the bathroom. I’ve written a legal guide about that. Here is a link:  A new case from the Ninth Circuit Court of Appeals, applying California law to a federal case, illustrates this syndrome. A company called Affinity needed truck drivers. But it didn’t want to pay them sick leave, or vacation holiday or severance wages. They didn’t want to pay for the drivers to be covered by workers compensation. So, they came up with the idea of having the drivers sign an agreement when they were hired on. The agreement is very clear: it says the drivers are contractors, not employees. They even required the drivers to obtain business licenses, and to have commercial checking accounts. OK.  Affinity, it seemed, wanted drivers to be contractors, not employees. But it just could not give up CONTROL! Affinity wanted to schedule the drivers day by day. Drivers had to request time off, weeks in advance. Drivers needed trucks. Usually, a contractor has its own truck. But, the drivers were “encouraged” to lease their trucks from Affinity. Contractors usually paint their trucks with their own trade dress (for branding purposes). Nope. Affinity required the trucks to have a Sears logo on the otherwise white truck. Affinity dictated exactly how the trucks would be outfitted with accessories like packing material and tools. Drivers had to report every day to Affinity’s facility, and report to a “supervisor” (here’s a hint: “contractors” don’t have “supervisors”). Drivers were required to attend 30 minute “stand up” meetings every day. Drivers were required to wear uniforms, and groom themselves as Affinity dictated (no tattoos or piercings could show, and let’s keep those beards neatly trimmed!). It went on and on. Affinity wanted to be in control of the physical details of the work of their “contractors”. Affinity had it both ways pretty successfully. It even won a trial in the district court. But, the Ninth Circuit reversed the district court judge, and remanded the case with instructions to the district court that the drivers were employees within the meaning of California law. So, now, Affinity will be exposed to a lot of liability; because they just could not give up CONTROL.

Three Gifts Workers Should Stop Giving Their Employers – Part 2: The Gift of At Will Servitude

Generally speaking, workers are, in the absence of some agreement to the contrary, “at will”. I’ve written about what that means in some detail elsewhere. But, in fact, most people already know what this means: your employer can fire you, any time, without advance notice, for a good reason, a bad reason, or no reason at all (so long was it is not an illegal reason, such as race discrimination). In my view, a self-respecting person should be reluctant to agree to work under those conditions. Just because the law says you are at will in the absence of an agreement to the contrary doesn’t mean you shouldn’t insist your employer agree to the contrary, or, conversely, that you should give your employer the gift of working under those conditions. In the hiring process, consider proposing that you work a 90-day no-fault probationary period but that, if the employer is satisfied with your work at the end of that time, your employer agree not to fire you without good cause. Afraid to ask? OK. I get it. Do you want your children to be afraid to ask? And, if you ever have to decide whether to join a union, remember this: the most basic thing that a union does is to protect its members against arbitrary termination; its members are not “at will” employees.

I’m not proposing that the law be amended to switch the presumption about at will employment; I’m not saying that the government should step in and provide that employees can be fired (after a probationary period) only for good cause – yet. I’m suggesting that workers stand up for themselves and ask — at least ask. If the answer is “no”, you are free to give your employer the gift. Or not.

I do propose, though, that the law be amended to stop exerting pressure on applicants to give the gift of at will service to their employers. When workers are receiving unemployment benefits while they look for a job, the law provides that a worker will lose eligibility for unemployment benefits if “he or she, without good cause, refused to accept suitable employment when offered to him or her…” California Unemployment Insurance Code Section 1257(b). Refusing to accept a job on the ground that it is offered “at will” is not considered “good cause” under this subdivision; so, the law currently provides that an applicant will lose unemployment benefit eligibility if the applicant declines a job because the employer insists on receiving the gift of at will servitude. This provision ought to be amended to provide that employer insistence on at will servitude is good cause to decline a job offer; because it is.

Three Gifts Workers Should Stop Giving Their Employers

These past six years or so, employers have enjoyed an environment in which they were able to meet any employee demand with a sneering “you’re lucky to have a job at all.” As the economy improves, let us hope that will be less and less the case. Going forward, I propose that workers focus on the future and what kind of working world they want for their children. If that world includes working for others, there are three gifts workers can stop giving their employers, and in that way move towards a future in which work is less skewed in favor of employers and more towards the interests of the middle class. The three gifts are: 1) the Gift of Service at Will; 2) The Gift of Unpaid Overtime; and 3) The Gift of Two Weeks Notice. I’ll be posting about each of these in the coming weeks.

Lessons from the GM Debacle: Keep a journal of events at work

I’ve been reading news reports about the head of GM standing up in front of a group of her employees to discuss the results of the investigation she commissioned to look into allegations that GM personnel knew some of their ignition switches were defective. The defect was serious because vehicles would “switch off”, resulting in loss of power steering and power braking, which, sometimes led to accidents. Moreover, since the air bags were wired through the ignition switches, power to the air bags shut off as well. Then, when the crashes occurred – no air bags.  So GM now has to recall a lot of cars.  And, GM is setting up a fund to pay money to victims, even though their legal liability to do so was supposedly discharged in their bankruptcy.

So, as I understand the news coverage, the GM head stood in front of these employees and said, “we commissioned a former US Attorney to look into this.  His investigation was thorough and fair. He concluded that various engineers and lower level management failed to report these problems up the chain of command when they became aware of it, then those lower-level engineers were incompetent in deciding not to do anything to fix the problem. But, his report completely exonerates upper level GM management – they were completely ignorant of these problems because of the incompetence of the lower engineers and managers. So, we have fired 15 of those people.”  She did not go on to announce that higher-level management would receive bonuses (that will take place, I suppose, at another conference in the future).

Now, maybe that’s exactly the way it went down: engineers knew about the problems, and some lower-level managers; but, those people kept silent and did not pass the information up the chain of command.  I have read some interesting comments, though, posted by engineers “under” the story.  A frequent observation is, “typical management cover-up.  Engineers are told never to put these things in writing, but, instead, to report these problems to the next layer of management verbally. That way, we are told, proper steps can be taken by those in authority to determine whether this is a “real problem”, and, while we are looking into it, word won’t “leak out” and be “misused to make unfair criticisms”.  Then, if management decides they want to act, they paper the situation to death, and take all the credit. If they decide not to act, and that turns out to be a mistake, they deny they knew anything about the situation. And the engineer is left holding the bag.”  I have to say, that has the ring of truth, although I’ve seen nothing about any GM engineer claiming that is what happened in this case.

All this leads me to remind workers of my advice that they keep a journal of work events. I’ve written a legal guide about that.  Just because your employer instructs you not to “paper” a problem in the employer’s files doesn’t mean you can’t memorialize the problem, as well as the instruction not to put anything in writing, in your personal journal. In fact, an instruction not to write something down at work strikes me as a sure sign you should document that in your j0urnal, and start a journal if you haven’t already done so. Later, if you are the subject of allegations that you “sat on” something important, you can produce a document, which you made at the time the events occurred, reflecting the instructions you received. True, the employer may contend you made the entry up after the fact; but, if you regularly keep a journal with periodic entries, that is a very convincing document to corroborate your version of the events. A document “made up” after the fact to appear to be “contemporaneous” is very difficult to create. For example, a forensic examiner of questioned documents can tell, looking at the various entries, if they were made at around the same (recent) time. Similarly, a forensic computer expert can check whether entries in a “living document” were made all at once, or over a period of time. Conversely, real contemporaneous journals are just as hard to dismiss as “fakes”.

I have also mentioned the importance of workers keeping track of time worked. Employees punch time cards (or their electronic equivalents), and that data is then in the possession of the employer. If a question arises about the accuracy of the employer’s statement of your hours on a pay card (for example, if you claim you’ve been shorted time, or denied overtime payments), you will want to consult the actual time records. Good luck with that! California law gives employees the right to look at their personnel file, but that doesn’t mean you will be able to obtain copies of your employer’s time records.  So, get in the habit of tracking your own hours. If you have a smart phone, there are inexpensive “apps” for that. If you do it, be consistent about it. Make your personal time entries just before your time on the clock starts, and just after you punch out (in other words, make the entries on your own time). Otherwise, your employer could reasonably complain that they aren’t paying you to maintain redundant, personal, time records, and that they “own” your data.  Finally, do this on your own device – not one that your employer has provided to you.

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