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Archive for May, 2014

Bullying: From the Playground to the Workplace

Posted on: May 16th, 2014

By: Kacie Manisco 

A bully on the playground and a bully in the office exhibit similar behavior and have similar effects on their victims, yet, only legislation preventing the former has passed. Workplace bullying, like childhood bullying, can take the form of verbal, nonverbal, psychological, or physical abuse, intimidation and humiliation. In a workplace setting, this includes behavior such as repeated name calling, hurtful remarks, shouting, belittling, constant criticism over trivial matters or even assigning an employee pointless or conversely, impossible, tasks.  Victims of workplace bullying often suffer from serious psychological trauma and even physical health problems. Although this behavior is prevalent in today’s workplace, it is not illegal – at least not yet. Since 2003, twenty five states, including California, have introduced bills into legislation that would ban workplace bullying. While sixteen of these bills are currently being considered in eleven states, none have been successful thus far.

Nonetheless, employers cannot afford to ignore workplace bullying, as it is closely tied to workplace harassment or discrimination claims. To state a valid claim for harassment, the harassing behavior must be accompanied by some form of discrimination against a member of a protected class. Federal law specifically provides protection from harassment or discrimination in employment because of gender, race, religion, national origin, age, disability, military membership or veteran status. In addition, California offers legal protection based on sexual orientation, gender identity, gender expression, genetic information, medical condition and marital status. Therefore, when a bully picks on somebody in a protected class, the employer is exposed to liability for a workplace discrimination or harassment lawsuit.

In addition to an increased risk of legal liability, bullying can have serious negative effects on a company and its organizational culture. Such negative effects can include reduced efficiency, productivity and profitability; increased absenteeism and employee turnover; increased costs associated with recruitment and training; increased workers’ compensation claims; poor morale and lack of motivation.  

Although not legally mandated (yet), employers would be well advised to implement their own anti-bullying policies and procedures. Staff and management should be educated on what constitutes bullying. Employers may wish to write a comprehensive policy covering a range of incidents – along the lines of those that may already be in place for issues such as discrimination and harassment.  Appropriate reporting and grievance systems should be established so the victim knows exactly who to turn to and so the claim can be promptly and adequately addressed. With the proper procedures in place, employers will not only minimize the risk of legal liability, but their employees will be as happy as children on the playground.

Supreme Court Upholds Prayer During Local Legislative Body Meetings

Posted on: May 16th, 2014

By: Bill Buechner

Recently, the United States Supreme Court issued a 5-4 decision upholding a town’s practice of inviting a local minister to deliver an invocation at the beginning of the town’s monthly board meetings.  Town of Greece, N.Y. v. Galloway, — S.Ct. —, 2014 WL 1757828 (May 5, 2014).   A copy of the decision is available here to review.

The town supervisor would invite a local minister to the front of the room to deliver an invocation after roll call and recitation of the Pledge of Allegiance.  The prayer was intended to place board members in a solemn frame of mind and to invoke divine guidance in making decisions regarding the affairs of the town.  The plaintiffs objected to this practice primarily on three grounds:  (1) the prayers given were often sectarian rather than ecumenical; (2) the invocations were given almost always by Christian ministers; and (3) the practice coerced participation by those who did not share the religious beliefs of the prayer giver.

As to content of the invocations given, the Court held that the First Amendment does not require individuals to “water down” their prayers to remove sectarian content.  In this regard, the Court relied on its previous holding in Marsh v. Chambers, 463 U.S. 783 (1983), wherein the Court upheld the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid for with state funds.   The Court noted that the prayers approved in Marsh and given in Congress in close proximity to the drafting of the First Amendment often had distinctly Christian content.   The Court concluded that it would be problematic for courts or government officials to edit or censor prayers, and that prayers given in the name of Jesus, Allah or Jehovah (for example) and which make passing references to religious doctrines do not violate the First Amendment as long as the practice, over time, is not “exploited to proselytize or advance” a particular faith or to disparage any other faith.  Town of Greece, 2014 WL 1757828, at *12.

As to the selection process, the Court explained that nearly all the congregations in the town were Christian and that ministers were selected informally by a town official who called the congregations listed in a local directory.  The town indicated that it would welcome any minister or layperson who wished to give a prayer, and after the plaintiffs complained about the practice, the town specifically invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers.  Also, a Wiccan priestess requested and was granted an opportunity to give the invocation as well.  The Court held that, as long as individuals are not selected in a discriminatory manner to give the invocation, the selection of prayer givers predominantly from one particular faith does not violate the First Amendment. Id. at *13.

Finally, the Court held that the practice of giving prayers at meetings of a local legislative body does not unconstitutionally coerce participation by nonadherents.  A plurality opinion explained that the practice did not compel citizens to engage in a religious observance and that the principal audience for these invocations is not the general public, but rather the lawmakers themselves. Id. at *14.  The plurality opinion stated that courts may consider whether the pattern of prayers given over time demonstrate a real danger of impermissible coercion, but that “in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” Id. at *15.  A concurring opinion concluded that the prayers were not unconstitutionally coercive for different reasons.

In light of Town of Greece, it likely will be permissible for local legislative bodies to include an invocation as part of its meetings, so long as the practice, over time, is not exploited to proselytize or advance a particular faith or to disparage any other faith, the selection process is non-discriminatory, and citizens are not required to participate.

Georgia Power Company Received the Highest ROE of Any Electric Utility in 2013

Posted on: May 16th, 2014

By: Bobby Baker

SNL Financial recently reported that Georgia Power Company received the highest authorized return on equity (ROE) of any electric utility in 2013.  The Company originally asked for an 11.50% ROE in its rate case filing, but was granted a 10.95% ROE.  SNL reported that, “[t]he average authorized ROE for the 38 electric general rate cases (in 2013) was 9.83%.”

In the 2013 rate case decision the Public Service Commission re-authorized the Company to retain excess earnings 100 basis points or 1% above its authorized ROE which effectively gives the Company an ROE of 11.95%.  Pursuant to testimony from the rate case one hundred basis points is approximately $130 million.

The SNL article found that Georgia Power Company had historically exceeded its authorized ROE level.  “Georgia Power earned an ROE of 12.29% in 2013, and has historically earned ROEs in excess of 10%, with 11.57%, 12.7%, and 12.59% ROEs earned in 2010, 2011, and 2012, respectively.”

2014 Data Breach Reports

Posted on: May 13th, 2014

By: David Cole  

Verizon recently released its 2014 edition of its Data Breach Investigation Report.   You can download a copy here for your reading pleasure — or heartburn.   Retailers should take particular note of this report.  As Verizon states, “(2013) may be tagged as the ‘year of the retailer breach,’ but a more  comprehensive assessment of the InfoSec risk environment shows it was a year of  transition from geopolitical attacks to large-scale attacks on payment card  systems.”  The most common method of attack against retailers was point-of-sale (POS) intrusion (33%), which is when the bad guys install malware on a POS device (usually through weak security like easy passwords) that collects card numbers as transactions are processed and dumps them into a temporary file, which is then retrieved later.  New PCI-DSS rules will go into effect in July, so now is the time to review your security policies and procedures.

The Ponemon Institute also released its 2014 Cost of a Data Breach Study.  You can download a copy of it here.  In the United States, the average cost of a data breach rose to $201 per breached record.  But the good news is that the report also confirms ways that businesses can reduce their costs of a data breach.  The most effective way to reduce costs is to have “strong security posture,” which means having strong security policies, training your employees, and making it a top issue, reduced the average cost by over $14 per record.  The factor having the second-biggest impact was having an incident response plan prepared in advance.  We have preached about this before – every business should have a data breach response plan that identifies your response team and the procedure you will follow.  Companies that did this saved an average of nearly $13 per record when responding to breaches in 2013.

Both of these reports confirm that a little investment and preparation on the front end will save you a lot of time and money later.  Please contact David Cole at (770) 818-1287 or [email protected] to discuss your questions about how to best prepare your organization.

NLRB Seeks Control Over Employers’ Email Accounts

Posted on: May 6th, 2014

By: David Cole  

If you have been diligent about reading our prior articles or attending our seminars (examples of them here, here, and here), then you have, hopefully, implemented or revised your e-mail, social media, and “bring your own device” or “BYOD” policies to address issues raised by Section 7 of the National Labor Relations Act.  Section 7 gives employees the right to engage in “protected concerted activities,” even if your workplace is not unionized.  As a result, the National Labor Relations Board (“NLRB”) has taken the position that employers cannot enforce policies that may restrict employees’ right to engage in concerted activity.

While employers cannot restrict employees’ rights, they do not have to permit employees to use company-provided communications systems for non-work purposes, such as concerted activity – at least for now.  This is because under existing law the NLRB has taken the position that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”  But this may change soon.  Last week, the NLRB announced that it is considering changing its position, and it is inviting public comments on whether to do so.  In other words, the NLRB is considering a position that employees have a statutory right to use their employers’ email, Internet, and phone systems for union activities and concerted activity.

There already are a number of issues that employers have to consider when crafting their policies.  For instance, many employers limit use of their email, Internet, and phone systems to business purposes only.  They also monitor their systems for a variety of reasons, such as protecting sensitive data from improper disclosure, customer service, managing productivity, and protecting against discrimination.  But if the NLRB gets its way, these limitations may become unlawful and employers will have to let employees use their systems for much more than work.  They will also have to be more careful in how they monitor their systems.

You can read the NLRB’s notice and request for comments here.  Employers wanting to oppose this change will have to act fast because the deadline for comments is June 16, 2014.