The Dialogue, a online conversation between yours truly and a prominent employee-side attorney, Nina Pirrotti, returns today with another installment — this time tackling the topic of sexual harassment in the workplace.   For prior installments, check out these posts here and here.  As for the promised redesign and relaunch of the blog, it’s nearly complete. Can’t wait to share it with you soon.    

chionDan: Last time we promised to tackle a serious topic: Pizza. Given that you’re based on New Haven, surely you have thoughts on the subject. Pepe’s? Sally’s? Modern? Or something else? 

But in the meantime, I wanted to tackle a really serious topic and get your thoughts on the state of sexual harassment claims.  It feels like we’re hearing more about it of late.  It’s been about two months since Bill O’Reilly was fired from Fox News amid allegations of sexual harassment, and the news this month is of a major shakeup at Uber in light of an internal investigation looking at workplace culture.  Indeed, the Uber CEO just announcement his resignation yesterday! We won’t get statistics out from the agencies that receive harassment complaints (EEOC and CHRO), but anecdotally, it feels like we’re seeing more awareness of the issue and more questions from employers.  What are you seeing from the employee-perspective this year?

nina_t_pirrotti1-150x150Nina: This is the bone-chilling reality and the reason why, even if I won the lottery tomorrow I would never give up my day job:  Sexual harassment continues to infect the workplace at the same alarming levels as it did in the days of Mad Men.  Indeed, the only aspects of it that have changed over the years is that now  men of power have much greater variety in the manner of delivery.  So in addition to groping, fondling and yes, even raping women in the workplace ala Don Draper and his C-Suite buddies, men of power these days are also sexting, Snapchatting  and otherwise exploiting social media to prime, intimidate and conquer their victims.  Hell, the president of the United States is even doing it!

Long before a SunTrust recruiter made headlines when he sent a nude photo of himself to a female prospective hire, exposing his genitals and inviting her to “play,” my client, a factory worker who spoke little English, endured daily groping and sexual taunts from her assembly line supervisor.  The smoking gun in that case?  A naked photo of himself that he texted her during work hours.   That case settled quickly, and despite her paltry salary, very, very well.

The main problem I encounter is, even if by some miracle such women summon the courage to come to me (the factory worker, for example, cancelled two appointments before she showed up at my office) , they often are petrified to take it to the next level.   Even when they have damning evidence, these men have such a hold on them that they fear for their jobs and even their physical safety if they come forward.   I will never forget the time I had to meet with a client at an undisclosed location far away from her workplace and my office to consult with her on a case in which the powerful, rainmaker chief of her department was subjecting her to unrelenting sexual harassment and she had the “goods” (graphic e-mails) to prove it!  She, an otherwise rational, grounded person, was convinced he would discover what she was doing and harm her.

Is your workplace more like a locker room?
Is your workplace more like a locker room?

What makes matters worse is that too often these victims’ worst fears are reinforced by employers who fail to take swift, decisive action when sexual harassment allegations are brought to light. This is far more apt to happen when the predator is a money maker for the employer.    In the case of the harassment by the department chief, for example, several other women had complained about his conduct to no avail.  Such non-response packs two punches.  First, it emboldens the predator who now  has first-hand knowledge he can act with impunity.  Second, it chills fresh victims, like my client, from taking action to protect themselves.   At some point, the hope for we plaintiffs’ employment lawyers, though, is that the lid explodes off the boiling pot.   We have seen this time and again in the media with Bill O’Reilly, Roger Ailes and the folks at Uber et al and, closer to home, that fearful employee who was sexually harassed by the “untouchable” chief ended up convincing four other employees to come forward (three of which were senior executives) and that case settled for well over $1 million even though the hospital finally terminated the chief and all five employees  kept their jobs.

I know your clients would never face such a predicament because they are getting advice from the best, Dan!  Perhaps you could share with us, though, how you counsel those employers who learn that an otherwise valuable employee is being accused of sexual harassment?

As for Pepes, Sally,Modern, Bar or others go, they are all great but I prefer making my own.  The secret is in my sauce . . .

Dan:  Well that’s a lot to respond to! But I don’t think it’s a fair argument to elevate rape (a horrific violent crime) into an analysis of sexual harassment cases in general.   No legitimate employer or their counsel is going to countenance sexual assault (much less outright sexual harassment either.)  Everyone agrees such conduct is wrong.    Continue Reading The Dialogue: Sex Harassment in the Workplace — Still an Issue, but How Much?

lock1Last night I had the opportunity to speak to the Colonial Total Rewards Association on the topic of Data Privacy and HR.  I titled the presentation “Is Your HR Data Going Rogue” and really focused on the role that Human Resources professionals should play in ensuring that company data is secured.

For those who have been following the blog for a while, you know that I’ve spoken a bit about this before (see some posts here and here).

Lest you think, this could NEVER happen at your company, the headlines from the last few weeks show otherwise. Company after company keep reporting major  data breaches — in part due to a W-2 scam that keeps claiming victims (see here, here, here and here if you’re not convinced).

Even technology companies are not immune. My favorite blurb from the last month was the following:

On Thursday, March 16, the CEO of Defense Point Security, LLC — a Virginia company that bills itself as “the choice provider of cyber security services to the federal government” — told all employees that their W-2 tax data was handed directly to fraudsters after someone inside the company got caught in a phisher’s net.

Oops.

So if even tech companies are victims of data breaches, is there any hope for the rest of us? Well, yes. It’s not easy but there are several steps that employers can take.

  1. Learn – This is NOT simply IT’s role; rather, HR professionals should have a key role at the table in discussing a company’s data privacy culture and practice.  And the first step in that is that HR should learn the basics of data privacy.
  2. Assess – HR has access to lots of data; where is it and who has access?  Where are you “leaking” data when it comes to your employees?
  3. Develop – Develop policies and your data privacy program; and develop the teams of people that will respond in the event of a data breach
  4. Educate – Data privacy and protection ought to be part of sustained training program, just like anti-harassment training
  5. Monitor – Figure out risks and review areas; when breach happens, HR needs to be at table to discuss employee impact
  6. Inform – When (not if) if you have a data breach, inform those affected and gov’t officials and implement your data breach plan.

Once you’ve made it through, it’s time to start back at the beginning. Learn from your mistakes in a data breach and re-assess your vulnerabilities.

Data privacy and the need for companies to view it as a key part of your company’s culture should be an integral part of your employee onboarding and training.  My thanks again to CTRA for the invitation to speak to the group and the great conversation we had last night.

I know. We’re a bit of a broken record here. Another post on the perils on retaliation claims. (I’m resisting adding the “so sue me” joke here.)

But new decisions from the courts keep coming out which give us an opportunity to do refreshers to employers and provide subtle tweaks to the associated wisdom surrounding defense of retaliation claims.

Today, my colleague, Gary Starr returns with recaps of both a Second and Sixth Circuit case and the implications for employers.  

starrFor employers, retaliation is often worse than the original challenged behavior.

But left unanswered in some instances is this question: What does an employee have to do to actually be protected by anti-retaliation laws? While different laws have use different words to protect that who oppose what they believe are unlawful conduct, what is clear is that the employee must take some action.

Certainly an employee who files a complaint with an agency and notice sent by the agency would fall within the statute.  If an employee is then subjected to some adverse action, that may be considered by the courts to be retaliatory.

Similarly, if an employee goes to a manager and provides details about a claim of harassment, discrimination, a paycheck problem, or an unsafe work condition, then any adverse action following that complaint may be considered retaliation.

The tougher problem arises where there is some grumbling or a passing comment. In that case, would the employer understand the comment to have been an assertion of rights protected by a statute?

Still not a good idea
Still not a good idea

In a recent Fair Labor Standards Act case, an employee complained that he had not been paid in several months. His employer responded that he would be paid when the employer felt like it. Then without warning the employer drew a gun and pointed it at the employee, who interpreted the response as the end of the conversation as well as the end of his employment.

The court in Greathouse v. JHS Security Inc. (decided last week at the Second Circuit) had no problem determining that the failure to pay proper wages was a violation of the law, however, whether the comment about not being paid leading the employee to quit in the face of the gun incident, was sufficient to be the basis of a retaliation was the more difficult question. There was no formal complaint to a state or federal agency and no written request to be paid. Even though the FLSA requires the filing of a complaint as a precondition to a retaliation claim, the court determined that a formal filing was not necessary, only notice to the employer.  Consequently, it is then a question of content and context whether the employee let his/her employer know of the problem.

In the Greathouse case, the court found that the employee’s comments were enough.

(Incidentally, we do not advise pointing a gun at your employees in this situation too.)

When it comes to sexual harassment retaliation situations, what does the employee have to do to be protected for having opposed the conduct?

The Sixth Circuit in EEOC v. New Breed Logistics, found that simply telling the supervisor who was doing the harassing to stop it was sufficient. The supervisor would regularly make sexually suggestive comments to a group of women employee who asked him to stop talking dirty to them. On one occasion he rubbed against one of the women under his supervision who immediately told him to stop touching her. He did not stop his verbal barrage, nor did he report it to his manager. The employees also did not raise the problem with other managers or with the human resources department.

When layoffs then were necessary, the supervisor identified the women who had asked him to stop his comments as the persons to be let go. While the persons making the decision were unaware of the harassment and of the objections raised to it, the role of the supervisor in the selection process was sufficient to hold the employer liable for retaliation if the employees had adequately opposed the harassment. The court found that simply telling the harasser to stop was sufficient to be protected. As the employer relied on the word of the harasser to choose the persons for layoff, the employer was liable for retaliation.

These cases tell us that greater scrutiny is needed when making employment decisions. Failing to look at the complaints or what is going on in the area where layoffs are occurring, may land an employer in big trouble. While we all think we can trust supervisors to report problems, it is important to verify that there are no existing problems or complaints that we don’t know.

Ignorance is not bliss; it can come with a hefty price tag.

My colleague Peter Murphy and I have been talking a lot about background checks lately.  It’s easier than ever to run a basic Internet search on someone, but what information do you find? And are there any limts?

Today, Peter talks about two recent settlements of background check claims against employers. Both cost the employers big dollars. Here’s what you can learn from them.

Peter Murphy

 

Back in March, Dan noted that plaintiffs’ lawyers were brining an increasing number of lawsuits under the Fair Credit Reporting Act (“FCRA”).

This seems to be occurring for two reasons. First, the FCRA contains very specific steps an employer must follow when obtaining and then using a background check for employment related purposes, including the following:

  1. Make a clear and conspicuous written disclosure to the job applicant that a consumer report may be obtained for employment purposes;
  2. Have the applicant authorize in writing the procurement of the report;
  3. And, before taking any adverse action based in whole or in part on the report, provide the applicant with:
    1. a copy of the report; and
    2. a description in writing of the employee’s rights under the FCRA.

If one of these steps is being systematically violated by an employer, then there is the potential for a lawsuit involving multiple plaintiffs or even a class of plaintiffs across the employer’s operations.

The second reason for the increasing number of FCRA lawsuits is that they expose employers to damages for each FCRA violation, as well as punitive damages, costs, and significant attorney’s fees.

Thus, unless employers review their hiring practices and ensure FCRA complaint, they could be exposed to costly lawsuits, as Dan and others warned back then.

Their warnings were prescient, as demonstrated by two recent settlements in FCRA cases.

In the first case, the employer accepted online job applications–just like almost all employers. The applicants alleged that the employer’s online application system did not comply with the FCRA’s procedural provisions addressing authorizations for a background check, or provide FCRA mandated disclosures to the applicants.

These procedural violations could have been enough to expose the employer to liability under the FCRA.

According to the applicants, however, the employer also was taking adverse employment actions based on information in the background checks without providing them a copy of the report or the required opportunity to correct or explain any discrepancies.

Although the employer denied any wrongdoing, it ultimately agreed to a $5.053 million settlement that recently was approved by a district court judge.

The only ones getting rich as a result of this settlement, though, were the plaintiffs’ lawyers, who received about $1.52 million in attorneys’ fees in comparison to the $50 payment to each of the eligible class members.

Plaintiffs’ attorneys were just as pleased with a district court’s preliminary approval of an FCRA settlement in a case pending in Virginia. Just like the prior case, the claims in this case stemmed from allegations that the employer violated the procedural protections of the FCRA, and then also failed to give job applications the ability to respond to adverse information in the background check.

Under the judge’s recent order, the plaintiffs’ attorneys would get 25 % of the $4,000,000 proposed settlement, and each potential class member would receive statutory damages of $53.

The numerous procedural and substantive provisions of the FCRA can be difficult to decipher, and as the above examples demonstrate small compliance mistakes can lead to costly and time consuming lawsuits.

Although we may sound like a broken record, employers should therefore consult with trusted counsel when necessary to ensure that their job application process can survive a FCRA challenge, and that their authorization forms and disclosure notices comply with FCRA’s requirements.

It’s not as easy as it first appears.

Do you know some of your co-workers deepest, darkest secrets? And did you want to know those secrets in the first place?

Odds are, somewhere, sometime, you’ve had a co-worker that has shared a little too much information.

Indeed, in this Facebook age, “oversharing” is turning out to be an issue; some employees just seem to lack a “privacy filter.”

Indeed, earlier this year, The New York Times ran a column on “obsessive sharing disorder” which noted that when employees share too much information, it can have a negative impact on the workplace and on working relationships within the workplace.

Last night, I had the opportunity to appear on Huffington Post Live, an online talk show created at of the Pulitzer Prize winning news site/blog.  We talked about this very issue and the legal issues that might flow from this.  (The other online panelists included Eric Meyer, of the always topical, The Employer Handbook.)

Suppose, for example, you’re a manager and you learn, through an employee’s “oversharing” that co-workers are telling racially-charged jokes. The employee isn’t complaining about it, but something feels wrong to you. What do you do? Ignore it? Tell the employee to stop sharing that information? Go to Human Resources? Relay the concerns to your boss?

And if you don’t report such behavior, will the company be liable for permitting such potential harassment to continue?

 We also talked a bit about the role of human resources. One speaker, Liz Ryan (found of Human Workplace), believed HR is in the need of a redo and that there are many “bad” HR professional out there.  I wasn’t comfortable going quite that far. Sure, there are some HR people in need of training, but there are many more who are great at what they do. 

You can replay the discussion here or below.   My thanks to Nancy Redd and the entire HuffPostLive staff for their professionalism and invitation.  Hope to do it again soon. 

 

There will likely come a time at some point at your company where someone, somewhere will do something really stupid.  And perhaps its even something you believe might be criminal.

See no evil?

It may be someone popular. Or someone really productive, like your top salesperson.

And you’ll probably only learn about it through a coincidence, like a co-worker walking by an employee’s cubicle unexpectedly and seeing what could be child pornography on the employee’s computer screen.

What happens next could be the difference between becoming the next Penn State or the next company you’ve still never heard of.

In Penn State’s case, superiors learned of unspeakable crimes and chose to cover it up.  The Freeh Report demonstrated that. Yesterday’s penalties by the NCAA demonstrate the consequences of such an action.  Further criminal indictments are also expected.

Some employers are unaware that there are certain types of crimes that must be reported by employers.

For example, Connecticut has a mandated reporter statute that requires certain employees to report child abuse. There is no discretion about it.  (See this good post from the From the Sidebar blog too.)

Similarly, under federal law, most employers have an obligation to report an employee who uses company computers to download child porn. 

But there may be other instances that fall outside the lines of these laws or instances that require a little more background. What then?

Obviously, each matter needs to be addressed on a case-by-case basis, but ignoring criminal behavior at work can often times come back to harm the company even more later on.  (Hence the phrase: “The Coverup is Worse Than the Crime.) When in doubt, do something — even if it means consulting with your counsel and determining that the action does not rise to the level of reporting for a variety of reasons. 

Nothing good comes from doing nothing.

For the next few weeks, I will be posting a few items about a technology and the law symposium that I am chairing on April 9, 2010 for the Connecticut Bar Foundation.  It is a free program that should be of interest to attorneys and non-attorneys alike.  While it is not strictly "employment-law" related, I hope you will indulge me in a few of these posts as a public service for the CBF whose website (how do we put this delicately) is in need of some free technology help.  

Thirty years ago, people discovered that Apples were more than something you ate.  And yet, ten years ago, tweeting was something birds did, cell phones were just for making calls and electronic filing was a quaint dream.

Today, attorneys can file a motion from home in pajamas, can look up a case on their smart phone, and can text a client from a beach — in Portugal.  

What does tomorrow bring?

On April 9, 2010, a free symposium — hosted at UConn Law School — will explore multiple facets of the changing practice of law and begin to answer that question. The scope of the symposium is wide-ranging: From social media and Facebook, to the rise of internet self help sites; from Google and iPhones to cloud computing.  You can download the entire program here.

With nationally-recognized speakers (Ross Kodner, Kevin O’Keefe, Brent Robertson, Professor Jane Moriarty, Wesley Horton and Robert Ambrogi to name drop a few) and local expert attorneys, the symposium will discuss how each generation is embracing (or shunning) these changes and how each generation is using (and can use) different tools to accomplish the same goals. The symposium will also explore how 20th century rules apply to today’s changes and discuss ways of adapting those rules to future needs.  Social media and technology tips are also on the agenda.

But not to be missed is a unique lunchtime discussion on "Would Lincoln get LinkedIn? Or Would He Tweet? Technology, Then and Now", bringing a historical perspective to the changing practice.  

No matter if you’re plugged in or think an ‘app’ is still something you order before dinner, this program promises to be one of the most talked about programs of the year. And did I mention that breakfast and lunch are ALSO included, free of charge? (Thanks to generous sponsorship by my firm, Pullman & Comley LLC.)

Space really is limited.  We fully expect it to fill up.  But you can print out the RSVP form and e-mail it back to ctbf@cbf-1.org to guarantee your spot.

And what to do if you’re out of state? Well, it just so happens that the Connecticut Law Tribune and Brandon Smith Reporting & Video have teamed up to provide a free webcast. Details on that broadcast will be available soon.  

I’ll be announcing more details in the upcoming days including a Twitter contest.  (You can follow all symposium tweets on Twitter with the hashtag #cbftech.)   In the meantime, be sure to RSVP. You won’t want to miss this one.   

This week, the U.S. Department of Labor updated their website and providLabor Secretary Elaine Chaoed some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them. 

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious.  There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department’s online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

The Connecticut Department of Labor has just posted a form for employers to fill out online regarding their experiences with the use of FMLA for the 2007 calendar year.  Filling out this form is required by state regulation for employers who are subject to the Act.

The Department’s website has the details:

If your company employed 75 or more employees in Connecticut as of October 1, 2006 you are subject to the Connecticut Family and Medical Leave Act and as such your response is needed for the Labor Commissioner’s report. Kindly take a moment to complete this form ant transmit it back to us before April 1, 2008. Your cooperation is greatly appreciated.

What the website does not specify is that the use of this form is actually mandated by state regulations. Specifically, Conn. Reg. Sec. 31-51qq-48 states that

(b) Employers shall report the following data for each calendar year for which they are subject to the Act: 

(1) Employer’s name;
(2) Number of employees;
(3) Number of family leaves approved for birth or adoption, and duration;
(4) Number of family leaves approved for family illness, and duration;
(5) Number of medical leaves approved, and duration;
(6) Any other information the Commissioner determines necessary to assess the current experience of employers with medical and family leaves of absence. Any family or medical leave approved under the Act which includes less than five days unpaid leave need not be reported to the Labor Department.

Although the language of the regulation suggests that compliance is mandatory, there is no indication in the regulation for the "punishment" for failure to comply.   Nevertheless, there also appears to be no "harm" in filling out the form either.  The goal of this form and report appears to be simply to track the progress and use of the state FMLA laws. 

Employers may receive notice of this form via the mail later this winter, but it is an easy item to get a head start on.  Once the numbers are compiled, the form can likely be filled out in just a few minutes.

A recent article by the Connecticut Law Tribune reported on the trial of two bar workers who claimed that they were terminated in retaliation for reporting a supervisor’s alleged sexual harassment of a waitress.  According to court records In the trial of  Daniel Van Kruiningen and Kimberly Chatterton v. Plan B, LLC d/b/a Mohegan After Dark, which took place in federal court in May 2007 (the article fails to mention the date), the jury found for the employer on all counts, including a common law claim for wrongful discharge. 

The Tribune article sums up the salacious allegations found in the Complaint:

Mystic resident Daniel Van Kruiningen and Kimberly Chatterton of Norwich were assistant manager and club manager of Ultra 88, an upscale lounge at the Mohegan Sun casino on Dec. 7, 2003. After hours, Chatterton was checking on other bars owned by her employer… 

Afterwards, Van Kruiningen obtained copies of the video surveillance camera’s recordings at Lucky’s Lounge, which showed that a young waitress had returned to Lucky’s after Chatterton left. Indistinctly, the videos appeared to show that [the supervisor] had sex with her on or near the bar.

According to the Complaint in the matter, they alleged that the video showed the supervisor causing the waitress to become intoxicated through serving of alcohol. Chatterton and Van Kruiningen alleged that they complained about serving alcohol to this underage waitress and about the incident, and alleged that they were fired a month after this incident in retaliation. 

From an employment law perspective, the most interesting aspect of the case is the wrongful-discharge claim.  The real action on this count took place behind the scenes before the trial, however.  In ruling on a motion for judgment, the District Court rejected the employer’s claim that reporting a supervisor’s serving of alcohol to minors was not an "important public policy" giving rise to an exception to the employment-at-will doctrine.  The court found that a wrongful discharge claim could arise from a state statute that forbids the serving of alcohol to minors

Footnote 6 of the opinion contains an interesting observation by the court about whether its ruling  will open the floodgates in other matters.

Defendant maintains that “[u]nder plaintiffs’ theory, every employee who observes – but does not participate in – a supervisor’s single violation of an important public policy, and who reports such violation to her employer, is immune from termination on an at-will basis.” …This is an overstatement because it overlooks the reality that such plaintiff must prove that he or she was terminated in retaliation for his or her reports of such  unlawful conduct; while the amount of allegedly unlawful conduct, and/or the number of times plaintiffs voiced complaints, may be relevant to the jury’s causation determination, these considerations do not render plaintiffs’ public policy claim as alleged legally insufficient.

What does this mean for employers in the state? It’s another case that has, depending on your perspective, eroded the at-will employment doctrine in Connecticut further, or expanded wrongful discharge claims to protect employees who report violations of state law. Although the employer ultimately prevailed at trial, the cost of the litigation as well as the uncertainty regarding the outcome must have weighed on the employer.

For employers in the food-services industry, the decision takes on some added significance. Because complaints regarding other employee’s violations of liquor laws could give rise to a wrongful discharge claim under this decision, employers should consider investigating such complaints and ensuring that its supervisors do not retaliate against employees who make such complaints. Advice of legal counsel to discuss the particular circumstances should also be considered.