Monthly Archives: December 2012

Payroll Taxes Headed Back Up

The morning papers reported that our elected representatives “celebrated” New Year’s Eve a day early, staying up past midnight on December 30th trying to hammer out a deal to avoid the fiscal cliff. Despite making slow progress towards each other, the two sides so far haven’t managed to come up with just the right combination of continuing tax cuts, extension of unemployment benefits, tweaks to the formula for calculating how much Social Security benefits will increase for inflation, estate tax changes, fixes for the alternative minimum tax, tax increases for capital gains, and . . . wait, have I left anything out? As you can see, there are plenty of moving parts.

But deal or no deal, there seems to be one thing we can say for certain: Payroll taxes are going up. After enjoying a reduced rate for a couple of years, every wage earner in this country is going to have to pay an additional 2% of their income to the IRS to fund Social Security. We all use to fork over 6.2% of our paychecks to the IRS for Social Security; our employers had to pay the same amount per employee. In 2010, however, President Obama signed a law that reduced worker contributions to 4.2% (employers still had to contribute the higher amount). This temporary measure is expiring tomorrow, and one of the few things Republicans and Democrats seem to agree on is that they aren’t planning to extend it. Given that it was a fairly obvious example of robbing (future retiree) Peter to pay (still working) Paul, this seems like a sensible choice, if an unhappy one for all of us working stiffs.

Irresistible Ladies: Hit the Unemployment Line

Here’s hoping your holidays are happier than Melissa Nelson’s. Nelson was working as a dental assistant when her boss, James Knight, fired her because she posed a threat to his marriage. Knight, whose wife also worked in the dental office, apparently found Nelson so irresistible that he just couldn’t work with her any longer. In other words, she was fired, Knight admitted, for being too darn hot. Nelson, who is married with children, had worked in the office for nine years before being sent packing.

Last week, the Iowa Supreme Court put a lump of coal in Nelson’s stocking when it found that she had no claim against Knight for sex discrimination. The court found that Nelson wasn’t fired because she was a woman, but because Knight found her so attractive. Even though that attraction presumably wouldn’t have existed had Nelson been male, the court found that this decision wasn’t ultimately based on gender, but on personal feelings. The court found it persuasive, for example, that Knight had hired another woman to take Nelson’s place.

Generally speaking, courts in employment cases have found that attraction isn’t about gender per se, but about chemistry. After all, the boss who favors his paramour isn’t treating all women the same; by definition, he is favoring one woman at the expense of others (and men, too). A male boss with an attraction problem discriminates, legally, only when he treats women similarly. In the case of favoritism, a boss who made sex the price of favorable treatment — and made the “product” available to anyone willing to pay — would cross the line. In this case, the court stated that it might have ruled differently if Knight fired a number of women because he was attracted to all of them.

But on reading the court’s opinion, it’s hard to avoid feeling that they have missed much of the point. This case is so chock full of gender stereotyping, it feels like we’ve traveled back in time to the days when women were first entering the workforce. For example:

  • Knight’s argument is that Nelson’s very presence in his office was the problem — not his inability to control himself. Even in his own telling, Knight’s problem was that he feared he would be unable to stop himself from trying to have an affair with Nelson. This hearkens back to . . . well, to the Garden, really. Women are sexual, corrupting, the source of temptation. It’s not what women do or how they act; it’s just what they are. That’s how this case became about the hot employee and not about the boss with the active imagination. (Speaking of the Garden, Nelson had the pleasure of being fired by the tag team of Knight and his pastor, who sat silently while Knight read a prepared statement informing Nelson that their “relationship had become a detriment to Knight’s family.” )
  • Despite Knight’s efforts to paint himself as a family man trying to protect the sanctity of his marriage, the evidence tells a different story. In fact, this could easily have been a sexual harassment case. Knight admitted telling Nelson that if she saw a bulge in his pants, she could conclude that her clothing –scrubs, according to her! — was too tight. He also told her it was a good thing he only found her tops too tight, because if she also wore tight pants, he would “get it coming and going.” Knight said that Nelson told him she and her husband had infrequent sex; his response was that this would be like having a Lamborghini — her — in the garage and never driving it. He also texted her a question about her orgasms. Strangely, few of these facts have made it into news reports about the case, nor did they figure in the court’s analysis. Somehow, this case still seems to be about the old-fashioned family man, possibly misguided but trying to do the right thing. And not about the icky horn-dog boss.
  • Speaking of stereotypes, you have got to feel a bit sorry for Knight’s wife, who not only had to witness all of this at work but whose jealousy was blamed for the firing. In fact, the Iowa Supreme Court framed the central question of the case like this: “Can a male employer terminate a female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” Oh the jealous wife, ruining everyone’s workplace fun, frowning on comments about bulging pants and orgasms. What a killjoy.
  • For me, the strangest fact of the case comes with even more stereotypes. After firing Nelson, Knight — again, with his pastor — had a meeting with Nelson’s husband. Knight reassured him that his wife had not done anything wrong or inappropriate, but had to be fired because Knight was afraid he would one day try to have an affair with her. In other words, I just fired your wife because I really want to have sex with her, but I want you to know it’s not her fault. And I’m so glad we could talk out your wife’s firing, man to man.

Confidentiality of Workplace Investigations

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

Supreme Court Wants to Hear More About Health Care Reform

Seems like only a few months ago that the Supreme Court narrowly upheld President Obama’s health care reform law. That decision, combined with the President’s reelection and Democratic gains in both the House and Senate, appeared to spell the end of the fighting over whether the law would go into effect. Although there are still plenty of disputes over how the law will be implemented, what the final regulations will say, and so on, the core question of the law’s validity seemed to be settled.

Until last week, when the Court once again entered the Obamacare fray. The Court had previously dismissed a lawsuit brought by Liberty University challenging the health care law, based on its holding last summer that the individual mandate to purchase insurance was constitutional. Liberty University asked the court to reconsider, and last week it did. The Court vacated its decision not to hear the case, granted Liberty’s petition for rehearing, and sent the case back to the Fourth Circuit Court of Appeals. Once that Court issues a decision, the case could once more find its way back to the Supreme Court, as early as next year.

There are two issues in the Liberty case. The school is challenging the law’s employer mandate: the requirement that employers with more than 50 employees either provide health insurance for employees that meets certain financial and coverage requirements or pay a fine. The school is also challenging the law’s requirement that health care plans (whether purchased by an employer or an individual) must include contraceptive coverage, without a copay.

For more information on what the health care law requires, see Health Care Reform: What Employers and Employees Need to Know.