Human Resources (HR) Compliance

Are you looking for something new to end the year with?

Then I have two quick links to share with you this morning.

First, on December 7 from noon to 1 pm (ET, of course), I, along with Eric Meyer (The Employer Handbook Blog), Jeff Nowak (FMLA Insights), Jon Hyman (Ohio Employer’s Law Blog), Robin Shea (Employment & Labor Insider), and our fearless moderator, Suzanne Lucas (Evil HR Lady) will present The 2017 Employment Law Year in Review.

The event is free, but space is limited. Register now for our one-hour recap of all the big employment-law and HR-compliance news of 2017, along with some practical tips to help you prepare your workplace for 2018.

Click here to register:  https://register.gotowebinar.com/register/5767568894289723906

Second, I’ve gotten an early listen to a brand-new podcast, entitled “Hostile Work Environment.” Set up by two employment lawyers who have a great sense of humor and a terrific ability to tell a story, the podcast shares various cases with facts that are too fantastic to make up.

You can download it at all the usual podcast locations. Worth a listen if you’re an HR type or employment lawyer.

The supervisor did it.

Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”.

While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened.

(And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.)

So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”.

What then?

Firing? Perhaps.

But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the standard?

In cases where there has been no tangible employment action taken, the EEOC has actually set forth in its guidance a whole discussion that says that firing is but one possibility.  What’s important is that the remedial measures should be designed to:

  • Stop the harassment;
  • Correct its effect on the employee; and,
  • Ensure that the harassment does not recur.

The EEOC’s guidance notes that these remedial measures “need not be those that the employee requests or prefers, as long as they are effective.”

Moreover, “in determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.”

The EEOC suggests that the employer balance the competing concerns and that disciplinary measures should be proportional to the seriousness of the offense.

What does that mean?

If the harassment was minor, the EEOC suggests, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary.

On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

And importantly, remedial measures also should correct the effects of the harassment. In the EEOC’s words, “such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.”

The EEOC provides various examples of measures to stop the harassment and ensure that it does not recur.  These include:

  • oral or written warning or reprimand;
  • transfer or reassignment;
  • demotion;
  • reduction of wages;
  • suspension;
  • discharge;
  • training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
  • monitoring of harasser to ensure that harassment stops.

As for examples of measures to correct the effects of the harassment, these include:

  • restoration of leave taken because of the harassment;
  • expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
  • reinstatement;
  • apology by the harasser;
  • monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and,
  • correction of any other harm caused by the harassment (e.g., compensation for losses).

How does this apply in the real world?

Jon Hyman of the Ohio Employer’s Law Blog, highlighted a case several years back where the employer didn’t terminate the offending supervisor on the first go around, but rather gave them a last chance.

Unfortunately, the employer didn’t follow through when the supervisor STILL engaged in harassment.  The case, Engel v. Rapid City School District, is worth a read to show how an employer’s reasonableness the first go around, can be used against it when it doesn’t follow through.

The EEOC’s guidance is a helpful guide to employers in navigating these issues.  The employer should look to the particular circumstances of any matter and determine what punishment is appropriate in that particular matter.

Perhaps it will conclude that firing is appropriate.

But if it concludes, based on an analysis of the entirety of the situation, that something less than that is appropriate too, the EEOC’s guidance can be a useful guidepost for that determination.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

Did you ever have an employee post a status update from his termination meeting with HR?

I wrote about it a few years ago.  It seemed shocking then, and if anything, we’ve only seemed to be shocked more and more as each new tweet or blog post gets distributed with some outrageous behavior from an employee (or sometimes an employer!).

It used to be that companies would have weeks, if not days, to respond to publicity.  Now, it’s hours or even minutes.

Companies want to preserve their culture and reputation — and their corresponding products and services — more than ever. One misstep can get the online outrage machine going.  heck, even McDonalds’ got into a online snafu when it released (and then promptly sold out of) a unique retro szechuan sauce.

This Thursday, my colleague Jarad Lucan and I will be talking about these issues at our annual Labor & Employment Fall Seminar.  It’s nearly sold out, but you can still see about registering here.

The program session is entitled: Culture Shock: Preserving and Protecting Your Company’s Culture and Reputation in the Digital Age.

And the description is as follows:

In today’s social-media-obsessed digital age, your company and its culture may be put on display for the world to see in mere moments. Whether it’s a Google engineer’s memo claiming gender differences, the sexual harassment scandals at Fox News or the Weinstein Companies, social media rants by employees, or employees participating in hate riots, it has never been more incumbent upon employers to address these issues immediately and appropriately. This session will review state and federal laws and provide employers with steps they can take to create and foster positive company culture and mitigate legal risks.

Of course, it goes without saying that some cultures that have been exposed to the harsh light of social media deserve to be discarded.  Over 20 employees were dismissed at Uber following a detailed sexual harassment investigation into some 215 claims.

Come join us this Thursday and hear about other stories of employees (and employers) behaving badly online and elsewhere.

 

A while back, I had a good discussion with a colleague on a topic with no real firm answers.

No, it wasn’t on whether the Yankees are better franchise than the Red Sox.  The answer to that is unequivocally yes.  (Sorry, Sox fans.)

Rather: When is a employee-related issue a legal one? Or alternatively, when can human resources handle the issue on it’s own?

What comes to mind at first is the old Justice Potter Stewart quote of, “I know it when I see it” but that seems unsatisfying.

For some smaller employers, the answer may lean more heavily towards “legal” in part because there may not be an in-house human resources professional to call on.

But on the flip side, there are some other employers that might rely heavily (perhaps overly so) on their HR contacts to handle matters, trying to avoid unnecessary legal expenses.

What I’ve concluded is what I’ve started with — there are no real answers to the question.

But I can outline a few (non-exclusive) times when a lawyer should probably get involved.

  1. You get a letter from a lawyer threatening legal action on behalf of an employee or, in the case of a non-compete, from a former employer.  Pretty self-evident; lawyer = legal issue.  I’m going to not even dwell on the obvious: an actual lawsuit being filed means an attorney ought to be contacted.
  2. You get a notice from a state or federal agency investigating wage/hour laws, anti-discrimination laws, workplace safety issues, or labor union-related issued. Anything from the DOL, CHRO, EEOC, OSHA, or NLRB (to name a few) has the potential to be a big deal. Things you say there can be used against you too.  The earlier the better.
    1. But unemployment compensation claims may not always rise to that level.  Some employers handle unemployment claims and appeals internally.  For those situations, it depends on the complexity of the situation.
  3. You have to conduct an investigation into a workplace issue, such as sexual harassment, AND you may want that investigation to be privileged and confidential.  Again, HR may be able to conduct a whole host of minor investigations but there are going to be some that involve sensitive issues, or perhaps raise company-wide concerns. Bring counsel involved and let them help to manage the investigation.
  4. You have a complex issue that doesn’t have a clear legal answer.  It’s pretty well-settled now that employers need to engage in interactive discussions with an employee regarding reasonable accommodations that they may need.  Qualified HR can handle those discussions.  But suppose the employee is injured on job, is out on workers’ compensation, has exhausted FMLA time and needs additional time off — what then?

But I’m interested hearing from other lawyers or human resources personnel. When is an issue a legal one and when is HR perfectly capable of addressing it? Leave your best tips in the comments below.

“Let’s engage in a Halloween-type party where everybody would be having sex.”

Or perhaps, “So, are you going to wear a bikini for your Halloween costume?”

What is it about Halloween that brings out the creep factor in the workplace?

The first quote is from a real district court case earlier this year which documented a series of alleged comments made relating to a sexual harassment complaint.

(If you’re scratching your head at the reference to a “Halloween-type” party, I’m right there with you.)

The second is from a different case that is no less offensive in its descriptions of pervasive inappropriate conduct in the workplace.

(And, as if you needed confirmation, Princess Leia in a bikini from Return of the Jedi is not appropriate in the workplace, however cool Princess Leia is.)

Now, long time readers may recall a 2008 post about the perils of costumes in the workplace, and another post in 2010 about the perils of enabling sexual harassment when it comes to Halloween.

And yet, it continues.

Suzanne Lucas (a/k/a Evil Hr Lady) recently posted some tips about hosting an Office Halloween party.  Among them:

Costumes shouldn’t make fun of other cultures, the word “sexy” shouldn’t be attached to any workplace costume and the gore should be kept to a minimum. Remember, the goal is to have fun, not to offend. If you want to dress up as a sexy zombie, save that for your own Halloween party with personal friends.

But here’s my simple advice, be afraid. Be very very afraid. There are just way too many bad things that happen on Halloween with far more “tricks” than “treats”.

I realize that sounds like a no-fun lawyer, but how many more sexual harassment cases from Halloween do we really want or need? Do I need to keep writing these posts each Halloween?

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions.

And it comes from an unexpected source: former Fox News anchor Gretchen Carlson.

Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions.

She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar.

I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it.

In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people start a new job.  She’s talked about it during Senate press conferences this year as well.

I’ll be interested in reading more about Carlson’s perspective in her new book being released today.

Carlson’s message should be well taken by employers; if employers are using these arbitration provisions merely as a means to allow a system of harassment to continue, then shame on them.

But here’s the issue: As with most things employment law related, it’s far more nuanced.

There are times when arbitration makes sense for BOTH the employer and employee. Litigation is expensive — very expensive, some of my clients would say — and is filled with uncertainty and time-consuming drama.  I talked more about this in a 2014 post.

Arbitration can be less expensive and can allow both sides to be heard by a neutral third party much more quickly and effectively than a court system.

And yes, it avoids some publicity but again, that can benefit employees too.

By filing in arbitration, rather than court, an employee’s claims won’t be public and won’t seen by future employers as a potential lawsuit waiting to happen.

The U.S. Supreme Court is set to review this once more in a trio of consolidated cases, including whether employers can force employees to sign away rights to pursue a class actions.

And we shall see if the Connecticut General Assembly revisits the issue in the upcoming session in January 2018.  Until then, employers should continue to monitor developments in this area and figure out if mandatory arbitration provisions are right for your business.

 

Sometimes, government is thought of as the enforcer of rules.  But sometimes, the government is also in the business of helping businesses too.

The latest example of this is an Employer Resource Guide put out a few weeks ago by the Connecticut Department of Labor. You can download it directly here.  

According to its introduction:

This employer resource guide was created to educate all employers on the wide array of programs, services, and incentives available in Connecticut. This guide will be  periodically updated, and automatically emailed to all registered employers in CTHires, ( www.cthires.com), the Department of Labor’s no cost online job bank. In addition, a link to the resource guide will be available on the Department of Labor’s website, http://www.ctdol.state.ct.us/employerresourceguide.pdf.

For some larger employers, much of the information contained here may not be news. But for others, there are programs that the government runs that may be helpful. For example, if you are struggling financially and may need to do layoffs, the Department’s Rapid Response Team can provide some assistance. There are also shared work programs, which I’ve talked about before, which allow employers to maintain some staff on reduced hours, while affording the employees the opportunity to collect unemployment compensation too.

Overall, the guide provides some very useful materials on programs that sometimes fall below the radar.  If you haven’t taken a look recently at the Department of Labor’s offerings, it’s well worth a few minutes of your time to see if there is a program that matches your company’s needs.

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface.

I raised it in one of my posts 10 years ago this very week.

But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave.

For employers, this new era should be even more concerning.

Why?

Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something.

Now with laws in many states mandating sexual harassment prevention training and with U.S. Supreme Court precedent nearly mandating that employers investigate harassment claims and take prompt remedial action, there’s just no excuse.

And yet, over the last 12-24 months, we’ve seen a series of very high-profile people be brought down over sex harassment cases.

The implications for this are huge — and not for the reasons you may think.

It’ll take a while for statistics to back this up, but my educated guess is that settlements of sex harassment claims, and employee verdicts of sex harassment claims are up and going to continue going up.

As a result, employers are likely to pay more for settlements in the short term to avoid headlines of the type we are seeing. And juries are more likely to punish employers that they think should know better.

The practical implications of this for employers are several, but I’ll highlight three, some of which I’ve said before.

  1. It is absolutely imperative for employers to investigate sex harassment claims. But more than that, employers must take steps to ensure that the harassment STOPS.  Paying off one case, only to have the harasser move on to the next victim just is a recipe for disaster.
  2. When a lawsuit does arise, make sure you are fairly evaluating the case. Even if you think you have a defense, there may be more value to settling the case early on than fighting it and losing big.  Not every case is a home run, but not every case is an outright winner for the employer either.
  3. Train. Train. Train.  And when you’re done training, encourage people to bring issues to your attention.  Sweeping claims under the rug will only hurt the employer in the long run.

A new era of sex harassment claims is upon us.  Employers that allow any such harassment to go on risks headlines AND big payouts.  It’s a place employers should strive really hard to avoid.