Muslim workers face increasing employment discrimination

A recent New York Times article examined employment discrimination against Muslims in the United States in the wake of the 9/11 attacks and the controversy surrounding the proposed construction of a mosque near Ground Zero.

 More than 800 Muslims reportedly filed discrimination claims through Sept. 30 of last year.  That total was up 20 percent from the year before and up 60 percent from 2005.  Figures from the past year aren’t available yet, but Islamic groups told the paper there has been a recent surge in complaints and that they anticipate the total for 2010 will set a new record.

 The federal Equal Employment Opportunity Commission has reportedly filed a number of prominent lawsuits on behalf of Muslim workers.  Many of the claims involve the use of ethnic slurs, hate language and bans on head scarves and prayer breaks.  Workers have received settlements in a number of high-profile cases.

 The recent debate surrounding the site of a proposed Islamic center in lower Manhattan (including the blatant propagandizing of the issue by some politicians), and corresponding anniversary of September 11, will no doubt contribute to an increase in discrimination claims.  In fact, with mid-terms and a gubernatorial election season upon us it is likely that the demonization of Muslims by some sects of society will only increase over the next several months.  Consequently, it would be very reasonable to assume that there will be a corresponding uptick in claims of discrimination.

 Employees should be aware that they are protected by laws governing discrimination and hostility in the workplace.  Further, not all discrimination takes place in the open halls of the workplace, and many times employees fall victim to subtle comments or actions by an employer in an isolated setting.  Employees who feel that they have been subjected to discrimination should contact an attorney. 

From an employer perspective the issue should be clear: treat all employees fairly and equally.  New York remains an ‘at-will’ employment state, and employers can and should be able to terminate ‘at-will.’  Taking steps to ensure that any such action does not occur under circumstances giving rise to an inference of discrimination, however, will prove the much wiser strategy in the long run.

Scott M. Peterson focuses his practice on litigation, including civil, commercial, First Amendment, liability, medical malpractice, personal injuryand wrongful death areas for Tully Rinckey PLLC. He previously spent more than five years in a busy law practice at another Capital District firm, where he gained extensive experience in all aspects of litigation. He has litigated matters in a wide range of settings, including complex construction litigation, defamation, multiple party malpractice and large-scale municipal matters.
Scott received his Juris Doctor from Albany Law School, where he served as a Managing Editor of the Albany Law Journal of Science and Technology. He was also active in government affairs and negotiation and mock trial events. He received his undergraduate degree in Political Science from Potsdam College.
Scott is very active in his community and with local Bar Associations, and serves on the Board of Directors of the Saratoga Affordable Housing Group. He devotes significant time to encouraging young adults to become active and engaged in the law, politics and society, and frequently serves as a judge/advisor in various mock trials and constitution competitions. He has also lectured to various groups about the law and their constitutional rights.
 

Do you believe porn is going on in the workplace?

Originally published 04:45 a.m., October 18, 2009, updated 12:55 p.m., October 18, 2009

Workplace Porn Wastes Time, Cash

Cheryl Wetzstein

First of two parts

On Sept. 29, my Washington Times colleague Jim McElhatton led the paper with a story about National Science Foundation (NSF) employees accessing pornography at their work computers.

The porn problem was pervasive enough to trigger a massive internal investigation. One senior NSF executive, for instance, had “spent at least 331 days looking at pornography on his government computer and chatting online with nude or partially clad women, without being detected,” Mr. McElhatton reported, based on records obtained through the Freedom of Information Act.

The NSF executive retired once his pornography use was exposed, but investigators estimated that he alone wasted between $13,800 and $58,000 of taxpayer monies.

No one should imagine that the NSF scandal is isolated or rare. Workplace pornography is a major problem, according to the American Management Association (AMA).

Employers are fighting back with anti-porn filters on computers; as of 2007, about two-thirds of U.S. companies used such software, the AMA said. But there are still ways to evade the filters, and inexplicably, many employees seem determined to access porn at work, even if it costs them their jobs.

Listen to these comments, gathered by Idaho Post-Register reporter Corey Taule in an award-winning 2007 article on pornography.

Mark J. Holubar, a human resources executive, told Mr. Taule that his company is clear about its no-porn-at-work policy, but he still had an employee confess to him: “Yeah, I know I did it. I know it was wrong. I don’t know why, I was just doing it.”

And Gordon Boyle, a pastor at Calvary Chapel Church in Idaho Falls, Idaho, who counsels men for sex addiction, said it was “so bizarre” that employees would look at porn even when they knew they were being monitored. “I don’t think we understand the grip or the pull [of pornography],” Mr. Boyle told Mr. Taule.

That, I think, is the big question: What makes presumably well-educated, well-paid professionals risk everything they worked for just for another look?

The answer is simple — sex addiction, says Michael Leahy, author of the new book “Porn @ Work: Exposing The Office’s #1 Addiction.”

Mr. Leahy, a recovering sex addict, believes he was one of the first people to get involved with workplace porn. As an IBM computer specialist in the early 1980s, he and colleagues used porn at work years before online pornography and personal computers entered American homes. Later, as an executive with a private office and top-of-the-line computers, Mr. Leahy found even more ways to spend hours engrossed in porn.

“I was that person who is every line manager’s and HR professional’s worst nightmare — the sex addict at work who flew under the radar for years and never got caught,” Mr. Leahy wrote.

How does porn interfere with work? Initially, it just consumes countless hours (viewing images, concealing images, plus regular trips to private places to masturbate).

As the compulsive behaviors grow, porn-related rituals detract from work performance, Mr. Leahy wrote. A person preoccupied with porn, for instance, will miss meetings, fail to make calls or leave projects unfinished. They may seem to undergo a personality change, becoming easily irritated, unreasonably defensive or socially withdrawn.

It’s not uncommon for sex addicts to lose their spouses or their jobs, Mr. Leahy wrote. They also are prone to acting out sexually, exposing themselves to sexually transmitted disease and pregnancy, or legal problems “ranging from nuisance offenses to rape,” Mr. Leahy wrote. Business managers, he added, are particularly alarmed by sexual harassment or hostile workplace lawsuits filed over employees’ bad behavior.

Mr. Leahy has some solutions to offer, but first he wants to sound the alarm about college students.

Their college experiences are in a pornography-friendly subculture, he told me. “But the key is, when they have to stop — when they are made to stop — what will they do?”

Next week: Collision course.

• Send e-mail to cwetzstein@washingtontimes.com.

http://washingtontimes.com/news/2009/oct/18/wetzstein-workplace-porn-wastes-time-cash/?feat=home_columns&

Answer
Is this a serious question, or are you an outlet for the washington times?

Taking it as a question, yes. Pron is pervasive and for some reason, women especially, pron is a narrow minded viewpoint of looking at scantiness on a media (screen, paper, magazine) rather than it being a pervasive fact of life. So the front cover of Nuts magazine could be described as pronographic. So could most women in female orientated workplaces. But no, only Nuts gets the shotgun of objectivism.

The situation is wider than most women and the article suggests.

Bob

If you have been selling HRMS Software, HRIS systems or HR software for any amount of time, I am certain you will agree with most of what I have written here. If you are new to the industry, get ready for a lot of heart break. In fact, I challenge anyone to offer a product that is harder to sell than HRMS Software, HRIS systems or HR Software.

I have been selling HRMS software, HRIS systems, and HR software for more than 15 years. Here’s the scary reality. I have seen that if I show a hundred HR managers an HRIS application, at least 80 will express interest in buying. At most, 10 to 20 will get the approval for purchase. Based on my estimated numbers, this means that for every 10 HR departments looking for an HRIS product only 2.5 actually end up getting the approval and buying a system. The intent of this article is to explain why this happens and what you as an HR software sales person can do to avoid the pit falls. 

Why is selling HRMS Software, HRIS systems or HRMS Payroll systems so hard?

• You are not selling your HR software to the decision maker

More often than not, you will be selling your HRMS software, HRIS system or HRMS payroll product to the head of the HR department who will, in turn, sell to those with the authority to approve the funds. So to some degree, the success or failure you achieve in HR software sales will rest with someone else’s ability to sell your system. Welcome to HRIS system sales. Typical sales theory says you should, in this case, go directly to the decision maker. You can try, and you should, but it is important to remember that in most cases they are not the one with the direct need for a system. They are going to rely on human resources to make the determination of which product will work best for the organization. There is very little way around it; you sell to the HR department and they sell the concept to others.

Think about it.  In what other type of sales are you not selling to the decision maker? If you sell used cars, houses, or shoes, in all those cases you are working with the person with the ability to approve the purchase.

• Next to impossible to cost justify HRIS software

Selling anything often applies using some type of cost justification. I have seen some companies come up with detailed models that help to cost justify an HR software application. I have even worked on a few, but I don’t think they work very well. Frankly, too many of the estimated cost savings of an HR application are soft costs. Such as: each termination costs the company x amount of dollars.  So if through improved HR customer service and reporting HR is able to reduce the turnover rate from X to Y, x amount of dollars is saved. This may in fact be valid. The problem is ultimately your system will be sold to a finance or accounting person. I started out as an accountant. As an accountant, at least by education, let me tell you soft cost HR software savings will be a hard sell.

There are exceptions. If your HRIS or HRMS application includes in house payroll or a payroll hosted option that is less expensive than what the company is using, this is easy to calculate ROI. Recruiting systems are also easier to cost justify. If a widget company is paying X dollars to head hunters each year and you are able, with a recruiting solution, to hire ten percent more internally, there is a direct ROI statement that can be offered.

Yes, an HR system will save human resources a tremendous amount of time and benefit the entire organization but how much money is actually saved? Not an easy answer or an easy sale.

• Does the organization see enough value to invest in an HRIS system or HRMS software application?

When it comes to HR, in my opinion, there are two types of HR departments. There are companies that place great value on the benefits of HR and those that see HR as a cost center. It’s pretty easy to tell which is which. If you have a well staffed human resource  department run by a true HR professional, the company likely values HR and you will find you stand a far greater chance of getting approval than if you are working with an understaffed HR department run by more of a clerical HR person than a professional. If the organization has 700 employees and does not currently have an HR software system, why? The need is there. The benefits are there. Have they tried to get the approval for a system before and failed? The company would benefit from a system, so why have they not as of yet added one? The longer you work in the industry, the quicker you will become at seeing which organizations value HR and which don’t. If the organization you are working with does not see HR as offering value, you will have a tough time getting the budget money for a new HRIS system.

What can you do to improve your HRMS software or HRIS system selling process?

Now that we have presented the problem, let’s talk about the solutions. There are steps you can take, to some degree or another, to counter the problems mentioned above but still you are going to lose deals based on what I have offered above. The important thing is to make sure you are working and winning the deals that can be won and not losing those deals to your competitors.

• Qualify, qualify, qualify…… Your HRMS software or HRIS software prospects.

Years ago I had an interview with a large payroll HRIS software company. The VP of sales told me that they felt they were only closing the low lying fruit and were not closing the harder sales. I told him, the low lying fruit was exactly what I was going to try and close and to find as much of those situations as possible. He told me he did not like the answer. I was a little terrified because I could not back down at this point. I told him “Sorry, but it’s the truth.”  If you hire an inexperienced HR sales person, they are going to work the hard deals and six months to a year down the road, they will determine that the low lying fruit is where the money is made in HR software sales. I received the job offer but turned it down to start my own company.

As I mentioned above, those companies that don’t see value in their HR departments are less likely to invest in HR software than those companies that value HR. Before doing the demo, working up proposals, providing references and working to close a deal, you need to try and weed out those companies who have very little chance of getting approval for a system. Most often this is a question of cost. Let the prospect know early on how much your system costs and see what the reaction is or ask them what their budget is for a system.

Qualifications are not simply based on cost. It’s also a question of what the customer is looking for and why they are looking. If you ask them what their needs are and they indicate they must have a system that offers an integrated payroll package and your product does not, this is not a qualified lead. If you ask what their needs are or what problems they are currently having and they can’t provide an answer, this should also be a red flag. The more you qualify the leads of the prospect up front, the less head ache you will save yourself later on. Work the low lying fruit. If you ask why they are looking for an HR system, you might receive the ‘I’m outta here answer’ of “Well, we just wanted to see what was out there”. Thanks; Elvis has left the building.

• Learn how to be a consultant and a sales person to sell more HRIS software.

HR people are not IT people. You are not going to sell the technology to HR. You are going to sell the results of what your system can provide. In order to do this, you need to solve problems. The consultative sales process is pretty basic. Find out what the client is currently using and what problems they are having. Ask what they need a system to do and then show that your product corrects these problems and meets their needs. The better you are at this approach, the more likely you are to win the deal. This last paragraph is extremely important; you may want to go to Amazon and purchase a few books on consultative selling.

• Involve as many departments as possible in the HRIS system selling process.

When going through the sales process and demos with a prospect, I like to involve as many others in the organization as possible to show that the system offers value outside of HR. An HRIS system that provides value to the entire company has a greater chance of being sold than one that does not.

If your product offers a training module, make sure to involve the training department. Involve risk management with FMLA, workers comp and OSHA reporting. If you offer payroll, it is obvious that you will involve payroll and accounting. If your system does not but will feed data over to payroll, this is still a benefit to a department outside of HR. Then, of course, there are the benefits to employees with self service or managers with manager self service. I think you are getting the point, an HR system that streamlines information for an entire organization will be seen as having greater value than one that only benefits HR.

• Tie the benefits of the HRMS software to the goals of the organization.

Find out what the organization or the HR department goals are and show how your product can assist with meeting them. How many employees is the company looking to hire in the next year? Do they want to decrease turnover? Do they want to decrease costs per employee? If you can tie the benefits of your HRIS product to the company’s goals, you again stand a greater chance of getting the deal.

• Gain access to those making the decision.
 
As I have mentioned, you will fail to accomplish this more often than not but it is still worth trying. When performing the demo, ask HR to invite the decision maker to the presentation or ask for a meeting with this individual to determine exactly what their goals are for HR and the organization. As long as you attempt this connection, with the blessing of HR, the results will be beneficial.

• Advancing the HRMS software or HRIS system sell

The most powerful question in sales and, especially, HR system sales is: “What’s the next step.” Throughout the process, you need to make sure you are moving in a forward direction to close the sale. I provided a summary at the end of each meeting as to what my and the contact’s deliverables were. The first thing to do at the next meeting is to review those items.  At that end of that meeting the “What’s next” question pops up again. If you find you have deals sitting in your pipeline for long periods of time, try this approach to see what happens.

Can I apply for unemployment after FMLA expired?

I’ve been on FMLA for 16 weeks and will be release soon by my physician. My employer said that my position is no longer available and no other job position is available. Can I apply for unemployment? Will I be eligible?
I am looking for California law?

Answer
FMLA is only for 12 weeks so you ran that out a month ago and that is the reason you were terminated. In most cases once you get cleared by your doctor to return to work you will qualify for unemployment.

Is your Human Resources department drowning in paper? Human Resource departments are notorious for tremendous amounts of paper due to the primary processes they maintain such as Recruiting documents, Hiring and Job Applications, Employee Reviews / Writeups, I9 Forms, and Benefit Documentation to name a few.

But most importantly with the onset of a multitude of regulatory acts to comply with, such as HIPAA, FERPA, FACTA, FMLA the Human Resources department needs to know all of that documentation is secure from theft or intrusion. And having these as paper documents can open a company up to loss in other ways as well, like for instance a fire of the facility. If there is no external archive of every single document that company has lost valuable information.

There is a better way to meet these requirements AND insert efficiency for your HR department using a document conversion process. You can take all of those invaluable documents holding the personal information of all you present and past employees and putting them in to a digital format that is more readily available and archive-able.

1. Reduce your storage costs – Open up the space you are currently using to file all of these documents and either make is more productive or no longer pay the monthly rent.

2. Reduce you document retrieval costs – An average of 7 minutes is spent every time you have to look for a paper document, reduce that time to seconds by using an internal, secure, search feature.

3. Increase document security – You have unlimited control over every document that is converted to a digital format. You can give admin rights to certain people in your company allowing them access to only certain level files, and give the managers increased access. And when an employee changes positions you can immediately revoke their access.

4. Regulatory document compliance – Regulatory acts can be integrated in the system as they are created without having to duplicate and move heavy paper files to a different secure facility. You can require ‘need to know’ verification access as well.

Imagine having a desk that is not covered in paper, and being able to respond to employee requests with the use of your keyboard. That is the daily objective of document conversion and management, because converting paper documents is only part of the solution. The HR department needs to have ultimate control over every document for individual security as well as meeting regulatory compliance.

Selecting a document management system should account for the applications and processes you currently have in place. Because the new system should integrate in to your current work environment applications and allow you to easily transfer your current process in to a more efficient system. If you are having to recreate your entire process for the department to fit a new document management software I would highly recommend that you continue to research or verify that you NEED to make that change. Some companies do … but in general, most companies have a smooth HR process transition.

Can FMLA be used for anything other than the specified health disorder?

I was recently hospitalized & was on leave on doctors orders for 2 months. When I was supposed to come back I ended up missing work for another 2 weeks due to bronchitis & kidney infections. My boss demoted me while I was gone & said that my FMLA time was used up during the hospital stay even though it was unrelated to my medical condition. Is this legal?

Answer
You were demoted. The company is only required to have a job for you. Not necessarily the job you had before your leave. So yes it is legal for them to demote you.

I am not revealing any great secret by stating that our country is in the middle of tremendously difficult economic times. The smallest businesses to the largest corporations are forced to lay off employees or close their doors altogether. It is likely that every person who is reading this article knows someone who has lost his job, or maybe even is facing this terrifying reality personally. In most instances, I am certain that the employers are taking every step possible before affecting their workforce and are careful in their decisions when employee cuts have to be made. However, there are some unfortunate instances in which bosses make personnel choices that are unfairly based on prejudice, illegal cost-cutting efforts, or pure retaliation. If you believe that you have been a victim of discrimination at your work, or have even been wrongly terminated from your position, it is important that you contact an employment law attorney immediately.

You need to know that the laws of Texas are not set up in a way that favors employees. Our state operates under the concept of ‘at will’ employment, which essentially means that you work at the pleasure of your boss and he or she can fire you at any time. There does not need to be any reason given for your termination. However, you are protected by both Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 , which spell out certain instances that constitute employee discrimination. According to the law, you cannot face adverse effects to your employment status for any of the following reasons:

- Your race, color, national origin, religion, sex, or age (with certain exceptions)

- Disabilities that are covered under the Americans with Disabilities Act

- Requesting unpaid leave as warranted by the Family and Medical Leave Act (FMLA)

- Reporting acts of fraud or environmental or safety violations at your place of employment

- Your contract explicitly states only certain reasons that you can be fired

- Refusing to commit an illegal act on behalf of your employer

Claims of employment discrimination have increased both in Texas and nationally over the past several years, likely due in part to the faltering economy. The Equal Employment Opportunity Commission (EEOC) in Texas investigated approximately 13,000 more complaints filed in 2008 than they did in 2007, with a total of 95,402 charges being issued against employers last year. There are several possible reasons for which the economy may be a factor in these numbers. When forced to downsize, an employer may make decisions based on bias. Also, someone who has been fired and knows that the possibility of finding another job quickly is not good will more closely examine the reasons for his termination. Finally, if a person has been dealing with unemployment for an extended period of time, he may get frustrated and think back on how his former employer may have wronged him. All of these factors, as well as the unfair discrimination that has always occurred in the workplace to some extent, are affecting the need for, and the approach of, employment law attorneys.

If you believe the discrimination you faced fits into one of the protected areas, what steps must be taken in moving forward with a complaint? As I mentioned before, your first action should be to contact an attorney to partner with you through the process. An experienced lawyer will be able to ask you the right questions to determine the strength of your case, find witness who will corroborate your story, and assist you should the case reach mediation or even the courtroom.

Once you have secured legal representation, you will want to file an official complaint with the Equal Employment Opportunity Commission (EEOC) and/or the Texas Workforce Commission Civil Rights Division. You will need to be prepared with as many details about your allegations as possible, including the reasons that your employer gave for his actions, the reasons that you believe that actions constitute discrimination, other employees who either can be a witness to the inappropriate behavior or who were clearly treated differently under similar conditions, and the specific dates on which the incident(s) occurred. If you were passed over for a promotion, why do you think you were more qualified than the person who received the job? If you received a poor performance evaluation, how can you prove that you were doing an effective job? The more substantive and detailed information that you can offer, the stronger your case will appear.

You then will be assigned an investigator who will gather as much information as possible from both you and your employer, and may attempt an initial effort at mediation to resolve the issue as quickly and as effectively as possible. If mediation is not a viable option of proves unsuccessful, the investigation will continue until one of three conclusions is reached and presented to you in the form of a ‘right to sue’ letter ; there is cause for your complaint, there is no cause for your complaint, or there is insufficient evidence to determine either way. In any instance, you retain the right to sue your employer in state or federal court for at least ninety days after a decision is reached by the investigator. The letter you receive is simply meant to support or refute your claim of a viable case. If you do have an attorney working for you, he or she will be able to help you make the best decision concerning the future of your case.

Being treated unfairly at work or being laid off from a position you may have held for many years is always a difficult situation with which to cope. However, if you know that the reasons for the actions taken against you are based in discrimination, the situation quickly becomes much more personal and painful. While Texas is not a state that favors the employees in most situations, there are certain, well-defined reasons for which you cannot face bias from your employer. You need to know your rights and the most effective ways to assert these rights as you travel through the administrative and legal process of filing a complaint. Do not take this journey alone. You deserve the right to support your family, move forward in your career, and maintain a solid professional reputation without the ugly threat of discrimination hovering over you. Take that first step today.

Tony R. Bertolino is a managing partner with Bertolino LLP, a Texas law firm that has offices in Austin, Houston, and San Antonio. Bertolino LLP has attorneys who practice in the area of business litigation and can assist you if you have been the victim of employment discrimination or wrongful termination. Please visit our website to learn more.

How do I take maternity leave if I don’t qualify for FMLA at my work?

I have worked for my current employer for 6 months they want me to write up a maternity leave, but I dont qualify for FMLA. How much time can I take off? Is this considered something else?

Answer
Because you don’t qualify for FMLA you need to speak to your company’s HR department to find out what they specifically allow you to do. They probably have some sort of procedure that they follow and can help you get started. Good luck!