Lowering the Bar

Judge Who Lost Pants Wants Job Back

In what is certainly welcome news for amateur legal humorists everywhere, Roy Pearson has filed another lawsuit.  As you may recall (see, e.g., "Judge Drops Pants; Suit Still On," Lowering the Bar (June 6, 2007)), Pearson was formerly Judge Pearson, but ultimately lost his job after adverse publicity due to a lawsuit he filed demanding millions in compensation for a pair of lost pants.  A D.C. judge dismissed Pearson's claims after a trial in which, among other things, Pearson wept on the stand when describing how his dry cleaners had allegedly mistreated him.

In the new lawsuit, filed this time in federal court, Pearson alleges that he was actually fired for exposing corruption within the department where he worked.  He says he was a protected whistleblower and that the media circus in which the pants occupied the center ring was just the city's pretext for getting rid of him.

Pearson now wants his job back.  He is also seeking $1 million in damages, or approximately $64 million less than he sought for the loss of the treasured pants.

Link: Washington Post

Video Ruins Yet Another Workers' Comp Claim

How many workers' compensation claims have been proven false by a video showing the claimant doing something inconsistent with his claimed injury?

Well, it's probably a lot.  And now it's a lot plus one.

Garrett Dalton, 41, of Naugatuck, Connecticut, has been charged with workers' compensation fraud after he collected over $5,000 for an on-the-job injury he claimed took place sometime in June 2007.  Later that summer, however, while Dalton was still claiming to be too injured to work, he unwisely chose to enter a radio-station contest that required him to wear a dress, carry an egg balanced on a spoon, and run a 40-yard-dash in high heels.  He either did not expect to be recognized, or was unaware that TV cameras would be present.

Someone who apparently knew Dalton was then claiming to be fully disabled saw him on TV sprinting around in pumps, and called authorities.

Under Connecticut law, workers' comp fraud exceeding $2,000 is a Class B felony punishable by up to twenty years in prison.  If he gets no jail time, Mr. Dalton might be able to get his job back, but he might want to think about that.  Being charged with a crime after being caught wearing a dress and running around in high heels, trying to win a pair of Hannah Montana concert tickets, may make it a little difficult to be taken seriously as a prison guard.

Link: AP via FindLaw.com

Repeated Demands for Prostitute: Grounds for Termination?

I don't want to keep you in suspense: the answer is yes.

Riverside Casino and Golf Resort, located in Iowa, apparently gives its employees a special bonus to mark their first year of employment.  The bonus, at least in this case, was a gift certificate and a free night's stay at the casino's hotel.  A 62-year-old employee enjoying his bonus got into trouble after returning to his hotel room about midnight, and then calling the management (that is, his employers) to ask about hiring a prostitute.

Told that was not one of the services that the casino offered, even as part of the bonus, he called the competition, making the same request of the resort next door.  He must have identified himself in some way to them, because they called Riverside and asked what was going on.  As the report put it, hotel workers were then sent to the man's room "to ask him to stop demanding prostitutes."  According to the hotel's human resources director, the man answered the door in the nude.

It wasn't clear whether the hotel's human resources director was there at the time, but I like to think that he was.  If you are hoping to lose your job, answering the door naked when your human resources director knocks is probably one of the quicker ways to do that.  And, in fact, the employee was fired later that day.

This made the news recently because, after being fired, he filed a claim for unemployment benefits, which are typically not available if one has been fired for "misconduct."  At the hearing on the claim, the man argued that the casino had not been harmed by his actions, and that alcohol (a repeat offender) was to blame.  Double bonus points here for blaming the casino restaurant for forcing him to drink too much alcohol and then demand prostitutes.  As a result of the restaurant's actions, he noted, "I was absolutely plowed."

Also to blame: the casino itself, for its deceptive advertising.  "The advertisement is that it's just like Las Vegas, so I thought I was in Las Vegas," he argued.  Come to find out, it's illegal there, too, sir (technically), but the bigger problem with the Las Vegas Defense -- which we have seen invoked before -- is that even if what happened in Las Vegas did have to stay in Las Vegas, you were in Iowa.

No benefits were awarded.

Link: CBS News

Butt Artist's Case Against Former Employer Will Proceed

"Butt Artist Trial is Set" was the actual headline of the article at the link below, which informs us that a motion to dismiss Stephen Murmer's lawsuit against his former employer was denied on February 15.  Murmer, you may recall, is the teacher who was fired when his school district learned that, in his spare time, Murmer is an artist who paints things with his butt.

According to Murmer's complaint, the district had been aware of his technique since 2004, but the paint hit the fan in 2007 when the students learned about it.  Murmer had at some point appeared on a TV show to demonstrate his art, and a clip from that show later made its way to YouTube.  (Here's a link to the video in question.)

Murmer eventually sued the district, claiming he was wrongfully terminated because what he did with his business on his own time was his business, and constitutionally protected business at that.  (The ACLU is representing Murmer for free.)  In the complaint, which is available from the ACLU via Murmer's own website, www.buttprintart.com, Murmer concedes that uses his "posterior" to paint, but describes his art as building on established traditions within post-modernism:

17. As the artist Stan Murmur, Plaintiff developed the technique of incorporating his own body and the bodies of models as “brushes” or “stamps” in the process of painting, continuing, combining and developing the traditions of, for example, tattoo art (where the human body is used as canvas), and Anthropometry of the post-modern French Artist Yves Klein (1928-1962), who used female bodies as “living brushes" in the process of creating art.

18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.

19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.

20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one’s preconceived bias of the human body. The artist’s hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on
the concept and the purpose of art.

Once you're finished oscillating, why not contact Mr. Murmer to commission some work?  If you've always wanted to have your portrait painted by someone using his ass, now's your chance.

Last Friday (Feb. 15), Judge Robert Payne heard a motion by the school district to dismiss the teacher/artist's case, and after about an hour of oral argument he denied the motion.  Trial is set for March 11.

Hopefully, Murmer will act as his own sketch artist during the trial.

Link: NBC12 (Virginia)
Link: Chesterfield County (VA) Public Schools

Mustache-Discrimination Case Reaches Indian Supreme Court

On Monday, February 11, justices of the Supreme Court of India heard argument in the case of a man who claims he was fired from his job at Indian Airlines because of his sizeable and "elaborate" handlebar mustache.  Initial reports were that the justices appeared likely to side with the mustache.

Joynath Victor De says that he joined Indian Airlines in 1994 and was promoted to assistant manager of flight services before an anti-elaborate-mustache policy was added to the employee manual in 1998.  He claims he was reassigned to ground duties that year after he refused to trim it, and then was "compulsorily retired" in 2001.  According to the AFP report, De "sported the elaborate mustache" as part of a family tradition.  (The phrase used in the Indian press was "kept a stout moustache" -- I spent some time trying to decide which I liked better, but I've decided they are both equally great.)

The airline apparently does make exceptions to its anti-mustache regulation for Sikhs, who do not cut their hair for religious reasons.  But a family elaborate-mustache tradition apparently does not qualify.

The basis for the claim under Indian law was not very clear, but seems to involve an alleged failure by the airline to reasonably apply the policies set forth in its operations manual.  A lower-court judge agreed with De, but the Calcutta High Court reversed.

Reportedly, the Supreme Court justices, at least those on the initial panel, were sympathetic to De's claim.  "How can a person with a moustache be removed?" asked one from the bench.  "This is a democratic country."  (Probably he meant "free country," unless the mustache was so elaborate that it gets its own vote.)  News agencies in India reported that the justices had "issued notices" to the airline, which appears to mean that they have asked it to file a written response opposing De's plea for relief.

So, elaborate-mustache wearers of the world, there is hope.

Link: AFP via Yahoo! News
Link: Press Trust of India
Link: Official Site of the 2009 World Beard and Moustache Championships

Court Ruling Will Force Employers to Spank Employees Equally

If they are to spank at all, anyway (which this attorney does not recommend).

In 2006, a jury in Fresno, California, awarded Janet Orlando about $1.7 million for her claims that she had been spanked at work.  Orlando alleged that her employer, Anaheim-based Alarm One, held "contests" for its sales teams and that members of the losing team were deliberately humiliated.  Workers allegedly were hit with pies, forced to wear diapers and eat baby food, and paddled with the signs of rival companies.

The company described the events as "camaraderie-building exercises."

The jury found for Orlando on claims that included sexual harassment, but that verdict was reversed this week.  The Court of Appeal held on January 14 that the jury had not been instructed that an essential element of the sexual harassment claim was proof that the conduct was directed at a woman because of the fact she is female.

The court noted the company's argument that it had not based the spankings on whether any employee was male or female, but on the "misguided notion that spanking employees who performed poorly in front of their peers . . . would motivate them (or all the employees) to perform better."  Saying there was at least some evidence in the record to support the view of each side (though there was also evidence Orlando was a spanker and not just a spankee), the court found that the instructional error probably affected the verdict and it remanded for a new trial.

Orlando's attorney, "Butch" Wagner, said that they would take the case to trial again and might "get more this time."  Alarm One's attorney, Poncho Baker, wished Wagner "good luck" collecting on any judgment, which (you won't be surprised to know) he meant sarcastically because, he said, the company has since gone bankrupt.

Link: AP via MSNBC.com
Link: Orlando v. Alarm One, Inc.

Take the Workplace Harassment Quiz

Recently I viewed an online training seminar (as I have pledged to kill the next person who uses the word "webinar," I won't use that word) designed to help attorneys recognize, avoid and/or deal with harassment situations in the workplace.  The seminar discusses the law and then offers some sample scenarios for users to evaluate.  Here are some of the pictures used in those scenarios, along with the caption used for each in the seminar.

See if you can guess which of these pictures depicted potential harassment situations that should be dealt with immediately if they took place at your firm.  Answers are provided below.

______

Workplace Scenario: "The Interview"


______

Workplace Scenario: "Animal House"


______

Workplace Scenario: "Teasing"


______

Workplace Scenario: "Pix on the Cellphone"


______

Workplace Scenario: "The Working Lunch"

Hint: yes, this is the same guy from "Teasing."
______

Workplace Scenario: "The E-Mail"

______

Time's up!

If you did not answer, "all of the above depict potential harassment situations about which I should be very concerned," you are fired.

Teacher Fired for Gluteal Art Sues Employer

I am already about a dozen items behind, and now this morning, on a very busy day, I learn about this new lawsuit.  The high-school art teacher who was fired in January after his employer learned that, on his own time, he created and sold paintings made by applying paint to his buttocks and then pressing them onto a canvas, has now sued.

The artist is represented by the Virginia ACLU, which argues that the firing violated the First Amendment.  The artist allegedly kept his gluteal art "scrupulously private from his students," did not discuss it in class and used a pseudonym online to ensure that students did not come across it via Google.  (By firing him, of course, the school board has ensured that every single student in the high school will have seen it).

I have not visited the man's website.  Use the link below at your own risk.

Link: AP via FindLaw.com
Link: "Stan Murmur's" Website

Blog Tracks Employment-Law Violations at Dunder-Mifflin

Employment lawyers and fans of "The Office" (among others) will enjoy "That's What She Said," a blog by Julie Elgar at Ford & Harrison, an Atlanta-based labor and employment law firm.  Julie watches "The Office" and then posts an evaluation of what Dunder-Mifflin management did wrong in each episode (so there is no shortage of material).  She also estimates the total "litigation value" of each episode based on those errors.

For example, Friday's episode involved (1) a manager running over an employee with a company car on company property, with a subsequent use by said manager of the word "negligence," and (2) management calling a meeting for the express purposes of discussing employees' religious beliefs (there seems to have been some concern that the office might be "cursed").

Litigation value, Episode One: $450,000 (depending on the extent of medical bills).

Link:  That's What She Said
Link:  Ford & Harrison LLP

New Jersey Supreme Court Will Hear Inflatable-Rat Case

The New Jersey Supreme Court will be addressing free-speech issues in a case involving a giant inflatable rat, after an appeals court affirmed a township's decision to fine a union representative $133 for displaying the rat at an event.

New Jersey v. DeAngelo arises from the use by members of the International Brotherhood of Electrical Workers of the inflatable rat during a 2005 protest outside a Gold's Gym in Lawrence Township, New Jersey.  (The opinion explains that the rat "is a well-known symbol of protesting unfair labor practices."  The examples depicted here were used by IBEW in other cities.)  Gold's Gym called police and objected to the rat.  The IBEW was ordered to remove it on the grounds that it violated a local sign ordinance banning (among other things) "balloon signs or other inflated signs (excepting grand opening signs) . . . ."  They did, but the rat was back 45 minutes later, presumably after a .75-hour conference with union attorneys.  Police then issued a summons to Wayne DeAngelo, the senior union official present, who was later found guilty and fined.

On appeal, DeAngelo argued (1) that a rat with nothing written on it cannot be a "sign," and (2) the ordinance is too vague to be enforceable anyway.  The majority, however, found that the rat could qualify as a "sign" on the grounds that it "carr[ied] a symbolic message of a labor protest," and that the First Amendment was not violated partly because the ordinance was "content-neutral" -- all balloon signs are prohibited unless there is a grand opening in progress.

The dissenting judge thought that more facts were needed as to whether the ordinance was really being  enforced neutrally, and would have remanded the case.  As he pointed out, had a new Disney store opened in the township, it could legally have displayed the same rat right next door, under the "grand opening" exception, as a symbol of its movie, "Ratatouille."

Well, maybe not the same rat, but an inflatable rat of some kind.

Because there was a dissenting opinion, the defendant has the automatic right to appeal to the state supreme court, and says he will do so.

Link: FindLaw.com
Link: BNA Daily Labor Report (Sept. 17, 2007)
Link: Unionize Your Electrified Workplace

Dentist Sued for Installing Tusks Gets Insurance Coverage, Says Court

The Washington Supreme Court has reinstated a decision that Dr. Robert Woo's business-insurance policy should cover a settlement payment he made to a former employee after he installed tusks in her mouth, temporarily, while she was under anesthesia for a different procedure.  ("Different procedure" was the phrase the AP used to clarify that the woman was not intentionally having tusks installed in her mouth.)  The employee quit, saying she felt humiliated after finding out that Woo had taken pictures of her and her temporary tusks as a practical joke and that everyone in the office had seen them.  Woo paid $250,000 to settle the woman's lawsuit.

Fireman's Fund refused to cover that payment, saying it was an intentional act and not part of Woo's normal business activities.  After Woo paid the plaintiff, he sued Fireman's Fund.  A King County jury agreed with him (or just didn't like insurance companies) and awarded Woo the $250,000 plus another $750,000 on top of that.

I'm just sitting here reflecting on the fact that one million dollars can change hands in a dispute over a practical joke, but I'm not a millionaire after working reasonably hard for over a decade.  Obviously I'm doing something wrong.  Not sure who I resent more -- the woman who got a quarter-million for not being able to take a joke, or the dentist who got three-quarters of a million for taking pictures of a lady with fake tusks.

The Court of Appeals reversed the award, saying the act was a prank and not part of the practice of dentistry, but the state supreme court reinstated it.  According to the opinion, the "back story" was that the employee's family raised potbellied pigs and that she frequently talked about them at the office, and that frequent pig-related jests were made as part of an attempt (in Woo's version) to create a "friendly working environment."  The majority in the 5-4 decision found (according to the report) that the joke "was an integral, if odd, part of the dental surgery" the assistant was having anyway, which seems dubious.  The court may only have been holding that it was a close enough question that the jury's decision should not have been interfered with.  The dissenters wrote that the decision only "rewarded obnoxious behavior" (which I personally don't feel is a bad thing) and in fact allowed him to profit handsomely (which does seem unreasonable).

Woo's lawyer said his client, who he described as "a kindhearted, fun-loving man," was delighted with the high court's decision.

Link: AP via SFGate.com

Judge Halverson Suspended by Nevada State Commission

The Nevada Commission on Judicial Discipline issued an interim order today (July 25) suspending Judge Elizabeth Halverson pending a final determination in the disciplinary proceeding against her.  The order means that after reviewing evidence and holding a hearing, the Commission has concluded that Judge Halverson "poses a substantial threat of serious harm to the public and to the administration of justice."  More specifically, it found substantial evidence to believe that she:

1. is "without sufficient legal abilities to conduct trials in criminal cases without threat of serious harm to the public or the administration of justice;"
2. "has not treated staff and litigants with patience, dignity or courtesy," and created a hostile work environment for her staff;
3. failed to diligently perform her duties "by falling asleep on at least one occasion and possibly more while on the bench during a jury trial;" and
4. failed to cooperate with other judges and court administrators.

If you've been following this story -- and it's gotten enough attention outside of Nevada to have shown up in the ABA Journal -- this will not come as any surprise to you at all.  The order, which was posted today and which you can find here, is 26 pages of goodness about Judge Halverson's badness.

First, the suspicion that the judge doesn't have the ability to conduct a trial stems in part from incidents in which she met with juries when the lawyers were not present, including during deliberations, and at least once "decided to dine with the jurors in the courtroom during the course of the trial -- an event unheard of as far as the commissioners participating in this case are aware."  The Commission also noted that Halverson was removed from cases by one or both parties (exercising a "peremptory challenge" to get another judge) about twice as often overall as all other judges combined.

Second, the Commission found credible the testimony of Johnny Jordan, who was Halverson's bailiff, at least for a while.  He seems to have understood at the outset that he would have to help her with her shoes, for reasons apparent from this picture.  But she also made him, among other things:

• maintain the correct ice/water ratio in her glass at all times;
• make her lunch every day;
• cover her with a blanket when she was resting (in chambers and not on the bench, I guess);
• pick things up after she threw them on the floor; and
• work 12-hour days even when trial was not in session.

There was also some touching and inappropriate commenting, but you get the picture.  Also testifying was Ileen Spoor, a staff member who said she was mistreated, and also said that Halverson  would put people under oath and make them answer her own personal questions.  This included Halverson's husband (who by the way is a convicted felon), who was sworn in to answer certain questions about their marital relationship that weren't specified and which I don't even want to think about.

Witnesses testified that Halverson had indeed snoozed on the bench, the best detail about this being that poor Johnny Jordan had to try to wake her up without also pissing her off, which he would try to do by slamming a door.  (It didn't work.)  The Commission concluded here that "sleeping in court, whether there is a jury present or not, is not appropriate behavior for any judge."  Seems fair.

Finally, Halverson did not "cooperate."  She did not cooperate to the extent that after she no longer had a bailiff, she showed up with her own private armed bodyguards without telling the courthouse staff in advance.  This caused concern (and got her barred from the courthouse temporarily earlier this year).

The upshot is that Halverson is now suspended, and the state supreme court immediately unsealed the Commission's order (which does not bode well for the future of her judgeship, probably).  Those of you who are not required to maintain the correct ice/water ratio in anyone's glass might want to read it, and feel better about your current work situation.

Link: Harmless Error (a Nevada law blog)
Link: ABA Journal

Racist Dog Rejects Job Applicant

According to a Belgian newspaper, a local businessman rejected a Nigerian job applicant on the grounds that his dog was racist and would probably bite the man.  The applicant was not even allowed to enter the business where he had hoped to apply.

The man was applying under a program run by the local labor office, which refers applicants to potential employers and gets feedback on the results.  Far from trying to hide the reason for his action, the businessman actually wrote on his feedback form that he could not hire the applicant because of his color, and the risk that the dog would bite him as a result.  He denied discriminating against the applicant himself, telling De Standaard newspaper, "My dog is racist.  Not me."

The labor office disagreed, and has removed the business from its list of potential employers.  The applicant, who has lived in Belgium for 32 years (since he was 21), said it was not the first time he had been denied a job because of his race, although he said other employers had been more subtle.

Link: Reuters

Professional Beer Taster Successfully Sues Employer After Becoming An Alcoholic

A judge in Sao Paulo, Brazil, has ruled that a local brewing company must pay damages to one of its former beer tasters, after the taster alleged that his job -- drinking alcohol -- caused him to develop alcoholism.

In the lawsuit, the employee alleged that as part of his beer-tasting job, he was required to taste beer.  Specifically, he said he typically drank between 16 and 25 small glasses of beer during each eight-hour shift, which works out to a little over three pints a day, at least five days a week, for more than a decade.  (He also said he received a bottle of beer after each shift, so let's just call it four pints a day.)

Hard to say whether that is really enough to turn someone into an alcoholic, but the judge accepted the employee's argument that the company did not provide the "health measures needed to keep him from developing alcoholism."  The report did not say what health measures the employee said should have been provided.  The only one I can think of that would work would be to not let him drink on the job, which would sort of put a damper on his career as a beer taster.

Also, the company alleged that the employee was an alcoholic before he ever took the job as a beer taster.  But the judge said the company was still negligent even on those facts, because "an alcoholic should never have been made a beer tester."  So, apparently, if you need a beer taster you should not hire anyone who is an alcoholic, or anyone who is not an alcoholic (because they might become one).  Or, you can hire someone in either category to be a beer taster, as long as you don't let them drink beer on the job.

The real answer, of course, is that somebody who takes a job as a beer taster should be considered to have assumed the not-unforeseeable risk that drinking all day long every day might turn you into an alcoholic.  But in Brazil, this claim earned the taster just under $50,000.  Not enough to retire on, but that'll buy a lot of beer.

Link: Yahoo! News

Philippine Police Warned Not to Walk Too Gaily

Police officials in the Philippines were targets for criticism last week for discriminatory comments made by Samuel Pagdilao, chief superintendent and spokesperson for the Philippine National Police.  Pagdilao had warned police that they might be subject to administrative charges for "conduct unbecoming" if they violated certain "rules of conduct."  For example, he said, gay policemen may be fired if they "sway their hips while marching" or "engage in lustful conduct."

The report did not say whether the overly flamboyant marching style of Philippine policemen has caused any serious problems to date, or whether Pagdilao was just thinking out loud, but I suspect the latter.

He tried to back off from those comments on Friday, saying that the PNP "does not have a policy that discriminates against gays and lesbians.  All its policies are issued for everybody regardless of sex or creed."  (Or gender, he probably meant to add, but didn't.)  But "there are rules of conduct that apply to everybody," he continued, "for which violations may result in administrative charges for conduct unbecoming."

Activists weren't buying it, though, saying that the comments were discriminatory and only "deepened the stereotype of gay men."  Pagdilao's remarks "will only force gay policemen back into the closet," said one.  Pagdilao said he thought that was unlikely, since, he told reporters, he had "never heard of any Philippine policeman being gay anyway."  Well, if he hasn't heard of it, there must not be any.  Case closed.

Link: AFP via Yahoo! News

Jury Rejects Teacher's Claim of Anti-Witch Discrimination

The AP reported this week that a New York jury rejected a claim by teacher Lauren Berrios against a school district for wrongful termination.  Berrios sought $2 million in damages based on her claim that she was fired for being a witch, an allegation she denies.

Actually, the article only says that she "denied ever practicing witchcraft," which is not quite the same thing.  She could have taken all the classes and even passed the exam, but then chosen not to practice.  This happens with lawyers all the time and I don't see why witches should be any different.

Berrios sued the Hampton Bay school district in 2001, alleging that her school's principal, a born-again Christian, had fired her after deciding (for reasons the article did not disclose) that Berrios was a witch.  The district argued that Berrios was not fired due to suspected witch status, but rather because she did not get along with co-workers and had (the AP's verb choice) "conjured" up false stories.  For example, defense attorney Steven Stern told jurors, Berrios fabricated tales that her husband had been involved in a plane crash, and that her two-year-old son had "lost his fingers in a VCR accident."  The report did not explain why Berrios allegedly fabricated these tales, or how one might lose all ten fingers in even the worst VCR accident.

Link: AP via FindLaw.com

Employee Sues After "Chat-Room Addiction" Not Accommodated

A former IBM employee has sued the company after he was fired for inappropriate use of the Internet during work hours.  (It wasn't for reading blogs, not that you would do that during the workday.)  James Pacenza admitted that he spent time in chat rooms while he was supposed to be working, but said he did so only because he is "addicted to chat rooms," and he argued that IBM wrongfully terminated him rather than offer him a treatment program for his addiction.

Pacenza alleges that his chat-room participation is a form of "self medication" for post-traumatic stress disorder that he suffered in Vietnam.  He's seeking $5 million in damages.  IBM said it was never informed that Pacenza had this specific condition, and noted that the chat-room messages that led to his firing "included references to a sex act."

In October, the Stanford University School of Medicine released a study in which it concluded that one out of every eight Americans showed signs of possible Internet addiction.  The news report of this story didn't say what those signs might be.  If I spend time hunting for it, am I addicted to the Internet?  Guess I won't know until I read the study.  "We need to consider the fact," said the study's lead author, "that [the Internet] creates real problems for a subset of people."

Link: InformationWeek

Employees May Not Be Fired for Insulting Boss, Says Court

Before you all erupt in either glee or rage (depending on your position), please be aware there are two conditions for applying this rule: (1) you must be in Malaysia, and (2) the insulting must be done behind your supervisor's back.

Probably, condition #1 will be the obstacle for most of you.

Malaysia's Industrial Court, which handles workplace grievances, ruled on December 8 that a secretary at the National Insurance Board was not guilty of misconduct for sending emails from her office computer to friends, even though the emails contained "derogatory, insolent and impertinent" words about her supervisors.  The emails allegedly came to light only as a result of an unrelated investigation into the leak of a confidential report, but the secretary was fired for "misconduct" based on the emails.

The secretary, Ratnawati Mohamed Nawawi, who has a name that at first seems difficult but is actually fun to say if you march around the office chanting it, appealed her termination to the Industrial Court.  Court chairman Syed Ahmad Radzi Syed Omar, whose name is so long that his parents forgot they had already named him "Syed" once, agreed with Ratnawati that her words were not "misconduct" because they were not meant to undermine her superiors, but rather were merely gossip between friends. The report did not quote the emails Ratnawati sent, but the court's rationale makes the content of the emails irrelevant:

The court agrees that if those derogatory, insolent and impertinent [words] are used toward the superior officers directly it would construe a serious misconduct on the part of Ratnawati. But if those words or language are only used behind their backs and only between a few friends it would not be a misconduct. Those words are not meant to be heard by the senior officers.

They certainly aren't. The court also noted that boss-griping is an entirely natural phenomenon:

It is quite common and natural for staff to gossip about their superior officers. It can happen anywhere and anytime . . . it could be over coffee or tea or a meal [, or outside during a break, or while huddling under your desk, or between people in adjoining bathroom stalls, or while jointly peering out of an air duct you've crawled into that overlooks the boss's desk, or in a homemade fallout shelter that doesn't have room for the rest of the staff so you might as well stop pounding on the door, and so on].

It just happened to be on email in this case. The court awarded Ratnawati back wages and compensation totaling 66,850 ringgit, which as you know is about 18,570 U.S. dollars. It did say that the company did not have to give Ratnawati her job back, since "the trust between her and her employer was broken."

Link: AP via Yahoo! News

UPDATE: Spankee Awarded $1.7 Million; Will Appear on "Oprah"

An update to last week's story on the employee who sued after being spanked during "camaraderie-bulding exercises" at a Fresno company -- the jury awarded her $500,000 in actual damages and another $1.2 million in punitives.  The plaintiff, Janet Orlando, said today that she would be appearing on "Oprah," "Good Morning America," and an unidentified "late-night talk show" in the next few weeks, to tell her story.

$1.7 million.  I wish somebody around here would spank me.

Link: AP via My Way News

Tip of the Day: Spanking, Mocking, Diapering Are All Frowned Upon in the Workplace

In case you were unclear about this, it is not okay to spank employees at work, even as part of a "motivational" program under which underperforming employees are publicly humiliated.  Also not approved: pie-throwing, shouting of lewd comments, and forcing employees to wear diapers and eat baby food.

These were some of the fun team-building exercises engaged in at Alarm One Inc., in Fresno, California, or at least that's what a former saleswoman alleges in her lawsuit, which is about to go to the jury in Fresno County Superior Court.  The company sells alarms (not surprisingly), and also installs, services and monitors them.  But the allegations involve the sales teams, specifically those in the Hayward and Fresno offices.

The plaintiff alleges that the practice developed of pitting sales teams against each other, with the winners "poking fun at the losers."  The losers were thus the recipient of the aforementioned pies, diapers, baby food, and spankings, administered by the winners while "hooting" and shouting comments such as "You've been a bad [girl][boy], [employee name here]."  As an additional touch, the spankings were administered by swatting employees with a competitor's yard sign.  Allegedly, sales people who arrived late for a meeting or talked out of turn were also spanked.

Orlando, a 53-year-old former field supervisor, says that she was so humiliated by her three spankings that she was forced to quit her job in 2003, and she seeks damages.  The company's lawyers, on the other hand, say that the spankings were done "in fun to build camaraderie," that Orlando never complained about being spanked and in fact "had fun" and "uttered foul language" when others were spanked.  They say Orlando quit because she was passed over for promotion, not because of being spanked.  They also reject Orlando's claims of discrimination, because both male and female employees were spanked.

The case was expected to go to the jury this week.  As an additional plus with regard to this case, the opposing sides are represented by "Butch" Wagner and K. "Poncho" Baker, which makes it sound more like an episode of "C.Hi.P.S" than a lawsuit.

UPDATE: the jury awarded the spankee $500,000 in actual damages ($450,000 for emotional distress) on Friday.  They have not even reached the question of punitive damages yet.

Link: FresnoBee.com

Broker, Employer Battle over Reasons for Firing

Jim Whitehouse is suing his former employer, RBC Dominion Securities, for wrongful dismissal.  He was fired in early 2004 but the parties dispute the reason for the firing.

Whitehouse testified that he felt it was due to friction over his unique business model and investment style, which focused on bonds and did not include nearly as many stocks as other brokers did.  He also felt that his reluctance to adopt annual payment fees instead of being paid by the transaction was causing a conflict with his manager.

RBC says it was because he brought prostitutes to the office.

Whitehouse had earned (1) an average of $362,000 a year in commissions and (2) a reputation as someone who brought prostitutes to the office, during his last five years with the firm.  RBC officials testified that he was let go two days after it was discovered that he had brought a prostitute into the company's downtown office, and left her alone for some period of time in a secure area.

Whitehouse said he had long felt "unappreciated" at work.

Calgary Herald

Teacher Sues for Harassment Due to Farting Chair

Sue Storer formerly taught at Bedminster Down Secondary School in Bristol, England, but resigned last September, saying she had been subjected to sexist and other harassing behavior at work.   While there is nothing funny about the allegations of sexism, the other claims are pretty good.

Storer told an employment tribunal on Tuesday that, among other things, the school had harassed her by failing to replace her chair, which she said made a "farting" noise whenever she sat on it.  She claimed that other staff received new chairs but she did not.  Storer told the tribunal that the chair was a "source of embarrassment, especially at parent-teacher meetings." This added to the pressure Storer was allegedly under, and helped cause her resignation.

The tribunal is expected to rule within the next two weeks.

CNN.com

Ghosts Ruled Not Grounds for Denying Unemployment Benefits

An Iowa judge ruled this week that a former security guard could not be denied unemployment benefits after being fired on the grounds that he saw ghosts.

Wade Gallegos was working for a security company in September when he called his supervisor to warn him that ghosts were haunting a neighborhood he was guarding.  The supervisor went to the scene and, surprisingly, did not see the ghosts.  To Wade's credit, he did not do the usual they-were-just-here-a-minute-ago copout, but rather insisted the ghosts were still there and showed the supervisor right where they were standing.  Despite his integrity, and his conscientious ghost-protection service, he was fired the same day.

When he applied for unemployment benefits, the company challenged the application saying that he was guilty of "misconduct."  This week, however, a judge ruled that while seeing "ghosts and apparitions" did render a claimant unfit to act as a security guard, apparently because it had and would result in false alarms, it was not "misconduct" in the sense that would justify a denial of benefits.

Yahoo! News

"Feel My Pipes" Deemed Inappropriate Icebreaker at Law Firm Events

In April, the St. Petersburg Times reported on sexual-harassment charges made by several female attorneys at Holland & Knight's Tampa office against Douglas Wright, a partner in the firm.  The women complained of behavior that Wright called "joking and teasing," but which the women called bullying and harassing.

According to documents from the firm's internal investigation, which were later obtained by the newspaper, women complained that Wright would comment repeatedly on their clothing, sexual habits and partners, and sometimes threatened to fire them when they complained.  They alleged that one common practice of Wright's was to repeatedly insist, including before groups of people, that the women "feel his pipes," apparently referring to his biceps.  Wright admitted that he sometimes asked people to "feel his pipes" (or, sometimes, his "guns"), but said the expression derived from something a client once said about his "atypical physique," and that he had adopted it as "sort of an icebreaker with new people."  And nothing makes new people more comfortable than being asked to feel someone.

The firm's investigatory committee stated in 2004 that it found the allegations "generally credible" and that Wright had violated the firm's harassment policy, and it made a variety of recommendations to the managing partner, including that Wright be instructed not to ask or require employess to "feel his muscles, guns and/or pipes," stop asking associates about their sex lives, and not retaliate against anyone who complained.  The committee said such actions were especially necessary because Wright had held leadership positions at the firm and had "made questionable use of the power inherent in those positions."

Six months later, the firm did the only logical thing.  It promoted him. Wright was made third-in-command, but surrendered his promotion after the committee report was leaked to the newspaper.

You can read excerpts from the allegations, from Wright's statement, and various other items at the link below.

St. Petersburg Times (quotes from internal report)
St. Petersburg Times (editorial)

Wal-Mart Greeter Fired for Greeting Customers With Picture of Naked Wal-Mart Greeter

Dean Wooten, a 65-year-old Wal-Mart greeter in Muscatine, Iowa, was fired in September for insisting on greeting customers with a picture of himself in which he appeared to be naked except for a strategically-positioned Wal-Mart sack.

Wooten later said that a friend of his had used a "computer" to superimpose Wooten's head on the picture, which the friend had obtained from something called the "internet." He said he thought customers would find the photo amusing, and that he typically greeted them with it while saying that Wal-Mart had "cut back on expenses" and this represented the "new employee uniform."

Customers in fact complained to management, who told Wooten to stop displaying the photo. When he started up again five days later, he was fired after more customer complaints.

Wooten's subsequent request for unemployment benefits was denied by an administrative law judge, who ruled that "a reasonable person would know the act of showing a naked body wearing a Wal-Mart sack would not be good for the employer's business."

(Des Moines Register, Jan. 7, 2005).