November/December 2003 Issue Number 53

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Consider This...

IAFF Human Relations Conference January 25-28, 2004, Santa Monica, CA. Linda Willing will be presenting a workshop at this conference. For more information, go to www.iaff.org.

Maryland Fire Rescue Staff and Command School March 17-24, 2004, Memphis, TN. Linda Willing will be teaching one segment of this seminar. See www.mfri.org for more information.  

Leadership Training Seminar , March 25-28, 2004, Miami, Florida. Go to www.wfsi.org for more information.  

Privacy at Work? Think Again.

Employees who think they have a right to privacy at work better think again. Increasingly, companies and organizations are spying on their employees at work, and in most cases, it is perfectly legal.  

According to the Denver-based Privacy Foundation, more than a third of all American workers with access to computers- over 14 million people- were being monitored one way or another as of 2001. That number has increased significantly in recent years, with concerns about terrorism, and the introduction of laws that assign greater liability for employers when information is mishandled (such laws include the federal Health Insurance Portability and Accountability Act and the Sarbanes-Oxley Act, which regulates corporate governance.)  

It is easy and inexpensive for employers to monitor many aspects of computer use at work: what websites workers visit, who they e-mail or instant message, what files they download, even what data they delete. These forms of surveillance have led to firings and discipline of employees who view sexually explicit websites while on duty, or who are using their employer's time to run a business or buy and sell merchandise online. Even computer use that might not lead to discipline may lead to embarrassment; a recent survey by Reuters showed that at least 20% of American workers use instant messaging on duty to gossip about co-workers, flirt, or complain about senior management. Only 27% of those surveyed said they use instant messaging technology for strictly business purposes.  

Some leaders warn that excessive monitoring of employees may cross legal or ethical boundaries. For example, surveillance can violate aspects of labor law related to union organizing. At the very least, spying on employees can damage morale and create a workplace where trust is damaged.  

Margaret Soyster, an employment lawyer in New York, says all employers should have a written policy advising employees that their e-mail messages are not private and may be read by their supervisors, that the technology they use at work belongs to the employer, and that the employer has the right to monitor computer activities of employees. Employees should be required to sign off on this policy, she says, as a way of improving both transparency of practice, and individual accountability.  

Surveillance of workers, especially related to how they use computers and the Internet, is bound to increase in these times of economic difficulties and fears about security risks. But it also seems that it is in an employer's best interest to make such monitoring reasonable and open, and insure that what is done does not interfere with the essential mission of the organization. Otherwise, what might seem like a benefit in the short run can easily turn into a liability if it turns a positive workplace into what is perceived as a police state.  

Sources: New York Times, July 13, 2003
Reuters, October 4, 2003  

A white Providence, RI police officer has been held responsible by a jury for civil rights violations in the slaying of a fellow black officer, who was shot in a case of mistaken identity. The victim, Sgt. Cornel Young Jr., was in plain clothes when he came to assist at a disturbance at a diner, and was shot by officer Michael Solitro. Sgt. Young was the son of the highest ranking black officer on the Providence Police Department. A second officer was cleared of wrongdoing in the incident.

Source: Associated Press, October 31, 2003  

 

Beyond Prima Facie  

Prima facie is a legal term meaning "at first sight" or "ostensible, obvious." Prima facie evidence is evidence that would, if uncontested, establish a fact or raise the presumption of fact. Such evidence can be very powerful in discrimination claims. For example, the fact that no women have ever been hired or promoted on a fire department, despite their efforts to compete, might establish a prima facie case that the department in question is discriminating against women.  

But prima facie evidence isn't the end of the story. The key to prima facie evidence are the words "if uncontested." If there are valid, documented reasons why a condition exists, they can override the weight of prima facie evidence.  

Consider the case of Ronald Brooks, a line worker for a utility company. Brooks, who is black, competed twice for promotion to a supervisory position, but was passed over both times in favor of white employees. The company had not had a black construction supervisor for over twenty years. As a result, Brooks sued his employer for discrimination.  

He lost. Although the company conceded that the prima facie evidence looked bad, they brought forward other evidence to support their promotional decisions. Brooks scored lower than other candidates on the interview portion of the promotional process, and a supervisor had previously expressed concern about his ability to make quick decisions and respond under pressure. Brooks had had a number of accidents and safety mishaps at work that other promoted applicants did not have. He possessed no special qualifications for the job. When this evidence was reviewed, the company's actions were deemed appropriate, and the prima facie evidence of discrimination was undermined.  

The reason that this company was able to successfully defend itself in this litigation was that it had clear, documented evidence to support its position. Interviewers on the promotional board kept notes for each candidate, highlighting strengths and weaknesses. Past safety violations had been recorded. Discipline for workplace infractions had been meted out fairly and documented accurately. Without this groundwork in place, the prima facie evidence might have prevailed.  

There is a myth that an organization can never fire, discipline, or fail to promote a minority or female member, because "if we do, they'll say we're discriminating against them, and they'll sue." Yes, they may sue- it's everyone's right- but their odds of winning are greatly diminished when an employer does everything right in the weeks and months leading up to the action. The case of Ronald Brooks is just the most recent example that illustrates this point.  

Source: Ronald Brooks v. Ameren UE, US 8 th Circuit Court of Appeals, #03-1341

© Linda F. Willing, 2003