On October 14, 2009, I did a post on the value of zero tolerance policies: 0. The recent firestorm surrounding the forced resignation of Shirley Sherrod by the U.S. Department of Agriculture validates the 10/14/09 post as well as anything possibly could. Most of what has been written about the Sherrod debacle has focused on race and politics. This post focuses on employment and human resources issues. (For a similar post, see Dan Oswald.)

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The definition of insubordination is sometimes elusive. Everyone seems to agree that insubordination can result in a discharge. The question that causes disagreement is whether whatever the conduct in question is actually constitutes insubordination. I’m not in a position to judge what kind of job General Stanley McChrystal has been doing in Afghanistan, but I feel certain that what he said and did as reported in Rolling Stone amounts to insubordination. President Obama didn’t have to fire McChrystal, but he’s absolutely justified in doing so from an employment law standpoint. Employers who struggle with the meaning of insubordination should file this incident away as a good example of the offense.

There’s been much commotion over Debrahlee Lorenzana’s claim she was sexually harassed at Citibank for being too sexy. (Here, here, and here.) It brought to mind Right Said Fred’s 1991 hit I’m Too Sexy. The tongue-in-cheek song is about a model, and, though sung by a male, one could surmise that he’s actually singing about a female whose so sexy, she won’t give him the time of day. “I’m too sexy for my love . . . shirt . . . shirts . . . Milan . . . New York . . . Japan . . .  your party . . . my car . . . hat . . . cat . . . this song.”

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One of the most important employment law cases which will be decided by the U.S. Supreme Court during its next term is Staub v. Proctor Hospital. It involves a theory of discrimination law known as “cat’s paw.” The Supreme Court has accepted cat’s paw cases previously, because the various U.S. Circuit Courts of Appeals are divided on the meaning and application of this theory.  However, the cases have always been settled or withdrawn before the Court has had a chance to render a decision. The Court has accepted the Staub case but not before Elena Kagan filed a brief in her role as Solicitor General, requesting that the Court do so.

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As previously noted (here and here), the controversy surrounding Richard Blumenthal’s run for the U.S. Senate in Connecticut provides the basis for considering what employers are sometimes faced with considering: resume fraud. It doesn’t appear that the controversy will end soon, so maybe more lessons about the subject are yet to come. Blumenthal did receive his party’s nomination this past weekend.

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A Staten Island middle school teacher was suspended after eighth graders used vulgar words during a state-mandated lesson on behaviors that can transmit H.I.V./AIDS. The 26-year veteran teacher with an unblemished record wrote polite words for sexual organs, sexual acts and bodily fluids on the board in the classroom. She then asked students to supply terms they knew for those same things. Students provided bad words, took them home, shocked their parents, and caused the principal to suspend the teacher.

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In Choi v. Marciano, a Los Angeles jury awarded America’s largest 2009 verdict against Guess Jeans mogul George Marciano. This verdict is worth special attention, because the underlying lawsuit arose out of an employment matter. Five former Guess employees claimed that Marciano defamed them when he accused them of stealing and sued them for embezzlement. Each employee was awarded $74 million for a total of $370 million.

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A Hooters waitress in Michigan claims that she’s been put on probation and told to lose weight if she wants to keep her job. The server, standing five feet, eight inches, and weighing 132 pounds, says she’s devastated and looking for a lawyer. Hooters says it imposes no weight restriction on its employees. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

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In a post yesterday, I used the current controversy surrounding Richard Blumenthal, candidate for the U.S. Senate in Connecticut, to consider the issue of resume fraud sometimes confronted by employers. He’s accused of lying about his military record, though his situation is strange. More times than not, he told the truth. At times, it seems he didn’t. This situation as applied to the workplace deserves further consideration.

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Playing out in the theater of politics right now is an issue that sometimes plays out in the workplace. Connecticut Attorney General Richard Blumenthal, a candidate for the U.S. Senate, has said different things about his military record and is being accused of resume fraud. He served in the military. He didn’t serve in Viet Nam. Sometimes, he’s said his military service didn’t include Viet Nam. Increasingly, however, he’s referred to his service in Viet Nam.

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In the New York Times article referenced in my immediately preceding post, the new research on performance reviews spills over into the subject of proper supervision in the workplace. Most employment lawsuits have a supervisor or manager at their center. That doesn’t always mean that the supervisor has done something wrong, but many times, it means exactly that. Although HR generally shepherds the performance review process, supervisors and managers make the process work — or not. If a performance review is completed by a bad supervisor, it’s much more likely to get you in trouble than serve any useful purpose.

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Recently, I did a post wondering if it’s time to stop performance reviews at work. New research reported by the New York Times suggests that there’s no reason to wonder. They must be stopped — for the sake of worker efficiency, satisfaction and health. According to this research, it’s not just that performance reviews are ineffective and create the basis for employment lawsuits, they’re killing people.

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Social media may be the death of us all. At the very least, it’s going to get some of us fired. Actually, that’s been happening for some time now. But as social media is used by a growing number of people who, for some reason, think they can say whatever they want with impunity, the firings are increasing.

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If an employee is incapacitated for more than three days, she’s entitled to leave under the Family and Medical Leave Act (FMLA). What if an employee is sick and has a doctor’s note authorizing two days off? What if the employee misses days three and four and says she was still sick as a result of the medical condition diagnosed by the doctor? What if the employer fires the employee because she didn’t have medical proof for any leave beyond two days?

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Yesterday, I posted heresy — or so I’m told. My friend and fellow blogger, Michael Wade at Execupundit, has called me out and set me straight. You’ll notice that I haven’t posted much today. I’m finding it difficult to do much blogging while on the run. My only hope is that Mr. Buffett will learn of my plight, take pity, and send me a million dollars. He’ll never miss it, and I’ll definitely write something really good about him. Touche, Michael.

Berkshire Hathaway just concluded its annual shareholders lovefest (here and here). At a time when shareholder meetings are often raucous, the BH meeting was akin to revival. The presence of its Pope and CEO, Warren Buffett, the Oracle of Omaha, made it so. Everyone genuflected upon entry and listened in a state of rapture on earth. For 4-5 hours, he gave answers that were prophetic to his disciples. The meeting was attended by 40,000 people, making the Oracle the head of the largest mega-church in the world.

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Ever asked someone at work, “What’s wrong?” It’s a common question in all parts of life. In the workplace, we’re sometimes reluctant to ask. It may be because we really don’t want to know or fear a long explanation. It may be because we’re afraid we’ll find out something we’re not supposed to know. It may be because we’re just not big on communication.

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According to a female TV reporter in New York, she was sexually harassed by male co-workers and then fired because she complained about it. There was no dispute that a picture of the reporter had been doctored to portray her with cartoonishly blown up, large breasts. The reporter also said she was called “Big Butt Booty” and was on the receiving end of sex jokes. The trial against her employer, a Time Warner-owned cable news channel, lasted two weeks.

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Some employers have agreements with their employees that if there’s a dispute, it will be submitted to arbitration. This has always been a matter of controversy, as lawyers who represent employees argue that an employee shouldn’t be forced to give up her right to go into court. Not all employers and their lawyers think that these agreements are necessarily good. Before an employer goes down that path, it should think carefully about all the implications and seek legal counsel.

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The recession caused by Wall Street’s recklessness and the Securities and Exchange Commission’s derelection of duty isn’t  funny. Millions of Americans still suffer. The latest chapter of  the blame game has become somewhat humorous, however, while simultaneously reminding employers of handbook policies that have employment law implications. I’m talking, of course, about policies dealing with email and pornography.

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