These cases are usually difficult to sort out; don’t hesitate to consult with experienced employment counsel on them.

A study published recently in the Journal of Applied Psychology suggests that thin women are paid more than their overweight colleagues, while thin men actually make less.  According to  ”When It Comes to Pay, Do the Thin Win? The Effect of Weight on Pay for Men and Women,” being thin earned women about $16,000 more a year, on average. But thin men made about $8,000 less than their male co-workers.

The researchers suggest that the difference results from subconscious decisions based on entrenched social stereotypes.  Their report cites studies in which obese individuals were identified as “undisciplined, dishonest and less likely to do productive
work.”   At the same time, employers and fellow employees associate qualities such as self-discipline, thrift, hard work and positivity with thin individuals.

Discrimination against the obese is not illegal, although the EEOC has supported some overweight workers’ claims for discrimination if there was some link to an impairment protected under the Americans With Disabilities Act.  Good interviewers, however, should be alert to the rule that unconscious bias may play in decision-making.   For a very interesting review of the issue of such bias in the jury selection process, see Judge Mark Bennett’s article: “Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions.”  Or read Malcolm Gladwell’s wonderful book, “Blink“.

Interesting article from MSNBC about the pressures that employees face when their employers ask them to return to work from Family and Medical Leave before they are ready:

“Many workers . . . have  faced this conundrum [of being pressured to return to work early from leave], and it’s only gotten worse during this economic downturn as companies cut back on staffing, leaving fewer people with more work, workplace experts contend. That makes it even harder to take time off to deal with a medical condition, whether it’s their own or that of a family member.”

I’ve noticed in recent years that as Courts have made it more difficult for employees to bring ADA claims, FMLA claims seem to be more common.

Hat tip:  Workplace Prof Blog

A new study by the American Bar Foundation shows that plaintiff’s chances of winning in federal court are actually quite slim.    The article, “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States,” published in the June 2010 issue of the  Journal of Empirical Legal Studies, studies employment discrimination cases filed in federal courts between 1987 and 2003. The study found that the overwhelming majority of employment cases are brought by a single plaintiff; while cases involving multiple plaintiffs, class actions and representation by the EEOC or a public interest law firm are rare. More than 40 percent of plaintiffs either have their cases dismissed or lose at summary judgment. The other half are likely to settle very early in the process. Only six ercent of those filing employment discrimination lawsuits in federal court go to trial, where their chances of winning are one in three.  What is not clear is how many of the plaintiffs in the cases were represented by lawyers.

Madeleine Baran at Minnesota Public Radio has an interesting story about the use of non-competes in the health care profession.  (Disclosure: I was interviewed for the piece).  A mother has two children with severe mental health problems.  For the past year, her 8-year-old and 10-year-old daughters had been receiving services from a mental health worker who helped the girls learn how to adjust to school and reduce behaviors like bedwetting and self-injury. After years of chaos and struggle, the mother believed that her children had finally found an adult they could trust.

But two months ago, the family’s mental health worker changed employers.  Because she had signed a non-compete agreement with the agency she was leaving, she was not allowed to continue seeing any of her clients for one year.  The agency that she left would not allow an exception for the two children.

Non-compete agreements are commonly used – and enforced - in the health care profession in Minnesota.  In some states, courts have refused to enforce them on public policy grounds; i.e. patients should be able to chose their health care provider.  That issue has not been resolved yet here in Minnesota, though. 

Perhaps medicine is really just a business like any other?

Debrahlee Lorenzana is suing Citibank, alleging that she was fired not because her work was inadequate, as the bank claims, but because she is “too hot”.  Really.  She says that her bosses told her they couldn’t concentrate on their work because her appearance was too distracting. They ordered her to stop wearing turtlenecks. She was also forbidden to wear pencil skirts, three-inch heels, or fitted business suits. When Lorenzana pointed out female colleagues whose clothing was far more revealing than hers, “They said their body shapes were different from mine, and I drew too much attention.”

 

There is more attention being paid to discrimination on the basis of appearance, like this article by a Stanford Law professor, but being “too hot”.  C’mon!

 

If you’d like to judge for yourself, Ms. Lorenzana’s photo gallery is at the Village Voice.

When asked to predict the outcome of their cases, lawyers are often too optimistic, according to a survey published this month in the American Psychological Association’s Psychology, Public Policy & Law.

Shockingly, male attorneys were generally more overconfident than their female peers, and the more confident the lawyer, the more likely he would fall short of his predicted outcome.

Specifically, the study asked two questions of 481 American lawyers representing plaintiffs and defendants in cases expected to go to trial within a year. First, they were asked, “What would be a win situation in terms of your minimum goal for the outcome of this case?” Second, they were asked how confident they were of achieving the goal set in their first answer, on a scale of 0 to 100.  When the researchers conducted follow-up interviews, they found that 32 percent of the lawyers met their goals, 24 percent exceeded their goals and 44 percent were less successful than predicted.

The research also found that the accuracy of lawyers’ predictions about case outcomes was not improved by years of experience.  In fact,  many of the most overconfident lawyers were senior partners who do not typically seek out feedback.

One good idea:  ”Practitioners should also consider regularly obtaining customer feedback by sending their clients anonymous survey questionnaires at the close of every case; these should include questions that target the issues surrounding the management of client expectations about the achievement of goals in a particular case.”

It seems British lawyers are jumping on the “virtual law firm” bandwagon.  They seek to develop “a fresh way of working,” using technology ”to give a streamlined service without the traditional law firm infrastructure” and offering ” greater value for money and certainty on fees.”

Sounds familiar!

In Texas, plaintiff Balkrishna Shagrithaya claimed his partner/fellow entrepreneur, who was also the majority shareholder of the company, squeezed him out of the multi-million-dollar software company they both founded. Shagrithaya brought the action as an oppressed minority shareholder, a claim similar to those available under Minnesota law.  In particular, Shagrithaya alleged that his partner slashed his salary and attempted to push him out of the company. Shagrithaya sued to force a dividend payout, arguing he was an oppressed minority shareholder.

As in Minnesota, the Texas statute provides for “equitable” relief, meaning that the judge has a large amount of discretion to craft a remedy.   The judge took this to heart, adding $20 million to the advisory jury’s $65 million award to the plaintiff.

Under Minnesota law, shareholders in a closely held corporation owe each a duty of fair dealing.   Accordingly, these “oppressed shareholder” cases most commonly arise in two contexts:  when the majority owner tries to take unfair advantage of the minority owner, and when minority owners who are also employees claim that they are more than “at-will” employees.   Because the standards are hard to define, a majority owner dealing with a minority owner/employee must take extra care when terminating or taking other adverse action.

This isn’t an employment law issue per se, but I have represented enough family business over the years that I have seen first-hand the critical importance of succession planning.  Here is an excellent summary from today’s New York Times on what to consider to avoid a “succession disaster”, including some obvious and some not-so-obvious tips.