This current wave of sexual harassment (and, in some cases, sexual assault) allegations that are making headlines every single day is downright astonishing to many employment lawyers that I know.

It is the tsunami that knows no end.

And right now, that makes me nervous.  But maybe not for the reason you might think.

It’s not that I am nervous for companies or the risk of lawsuits.

I think many companies are prepared to deal with claims of harassment that arise and will adapt quickly to the landscape where more employees are bringing such matters to their attention.

What makes me nervous is the potential rush to judgment that seems to increase with every case.

Think of Matt Lauer last week: A claim brought Monday evening and he was fired late Tuesday night. Quick.

Thorough? Perhaps. Correct? Probably (based on the media reports).  But still pretty quick.

This is not a defense of harassers or even of Matt Lauer.  If someone commits sexual harassment, companies ought to take prompt corrective action. Companies that ignore complaints do so at their own peril.

As a lawyer though, I’m think I’ve been trained to be wary of allegations.  I went to law school in St. Louis, Missouri where they are proud of the slogan “Show Me”.

I have yet to see two identical sex harassment cases. Each matter brings a different set of people, a different set of circumstances, and different set of facts.

Facts still matter.

I’m waiting for the potential (or inevitable?) backlash to come from the current wave.

It may just start with a Duke Lacrosse-type situation — allegations so outrageous that everyone will want to believe them true.  And then we’ll find out that the allegations aren’t true.

And I worry about the harm to the process as a result.  It will set back those with legitimate complaints as well.

So, deep breathes everyone.

See harassment allegations come your way? Investigate. Seek to get the truth. Or as close to it as possible.

Some complaints will be true; others may not be.  What is alleged to be harassment, may instead be a consensual relationship.

And most of all, be cautious. And avoid the rush to judgment.

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.

starrWelcome back from summer! Today, my colleague Gary Starr and I bring you the story of an employer that thought that it had done everything right — only to see it all go wrong. 

Imagine this scenario: You, the employer, think you’ve taken all the right steps when hearing about a harassment complaint. You encourage the employee to file a written complaint. You conduct an investigation. You take “prompt remedial action”. What could go wrong?

Well, in a recent case at the Second Circuit, Vasquez v. Empress Ambulance Service, the employer later discovered it had been snookered by the alleged harasser. As a result, its investigation did not uncover what really happened. In fact, the employer — according to the court — had so messed up the investigation that it had charged the victim with actually being the harasser. This should serve as a cautionary tale for employers that investigations need to do more than simply weigh the proverbial “he said/she said” arguments.

What was the case about? 

A recently hired EMT complained she was being harassed by the Company dispatcher. The dispatcher repeatedly asked her out, even after she kept telling him that she was not interested and had a boyfriend. He would put his arm around her whenever he had the chance. He even sent her an “Anthony Weiner” picture of himself. She became fed-up and went to her manager, who asked her to write a formal complaint, which the company would investigate.

The dispatcher learned that she was complaining about him. He then went into his cellphone and changed text messages and included a revealing picture from a woman with whom he had a consensual relationship. He made the materials look like they came from the EMT. He then took screen shots of the doctored texts and photos and presented them to the Company when he was contacted as part of the investigation.

The investigators believed the co-worker’s account. When they met with EMT, she offered to show her phone with the texts and photos, but they declined. Instead they terminated her for sexually harassing the dispatcher.

What happened next?

She sued the employer claiming that she was retaliated against for raising her concerns about being harassed. The employer sought to have the case dismissed because it claimed it acted in good faith, its managers and supervisors were not involved in any harassment, and the decision-makers conducted an investigation and believed what they were told by the co-worker. The Company also argued that there were no allegations that the Company had a discriminatory motive to terminate the employee.

The Second Circuit found that the employer did not have to have a discriminatory motive to be liable for the harassment and retaliation. This was because the co-worker had manipulated the decision-makers so that the Company ultimately ended up being the means by which the co-worker fulfilled his unlawful design. The Court found that that the Company could be liable because it was negligent in the way in which it handled the investigation.

The investigation itself became a vehicle for the harassment to continue, says the court.

The court concluded that the investigation was conducted in such a way that it allowed the dispatcher to significantly impact the outcome. For example, the investigators did not allow the EMT to present evidence that would support her claim that she was the victim. The allegations in the complaint revealed that the dispatcher had tried unsuccessfully to have another employee lie on his behalf about the relationship he had with the victim, which the investigators did not learn. The Court noted that the investigation also failed to identify serious flaws in the dispatcher’s evidence, including the fact that one of the text messages he provided was sent to someone who was asleep, even though a reading of the text showed it was sent during the shift being worked by the EMT.

The Court recognized that a Company would not be liable if it had just got the decision wrong. However, the court found that the employer should not be shielded from liability when it acts negligently and allows a supervisor or a lower ranked employee with a discriminatory or retaliatory prejudice to influence the adverse decision. The flawed investigation undermined the Company’s defenses.

The investigators failed to permit the employee to present evidence that would call into question the documentation submitted by the co-worker. They failed to account for the likelihood that the co-worker might lie to protect his job and paint the woman was the perpetrator and not the victim of harassment. And they treated the dispatcher more as an informant, rather than as a potential suspect. They did not carefully review the timing of the charges and the evidence presented by the co-worker, including the fact that the morning the complaint was filed, he already had printed copies of amorous texts from the woman to substantiate his position.

Quite simply, the sloppiness of the investigation allowed the harasser to manipulate the process.

What’s the takeaway from the case?

Employers faced with charges of harassment or discrimination need to take their investigations seriously. It is not enough simply to talk to the individuals involved, but a thorough review of the statements made and the documents presented must be undertaken and then preserved.

Giving the complaining person an opportunity to respond to the defense being offered against her, is important so that the investigator can fairly weigh the information presented. The company should provide the complaining employee the assurance that the allegations are being taken seriously and that the process has been fair and thorough.

Examining what is presented in a skeptical light is important as is being sure that there is a legitimate basis for the action taken. Employers who do not take harassment and discrimination allegations seriously or who do not conduct thorough investigations will find themselves later trying to explain away their actions.

As I return from an extended absence for the Thanksgiving holiday, my colleagues Gary Starr and Gabe Jiran share this alert about anonymous threats in the workplace based on a recent Circuit Court decision

starrEmployee complaints based on anonymous harassment pose special problems for employers.  How do you uncover the source of the problem when no one is able to identify who acted inappropriately?  One employer learned the hard way what not to do and what should be done.

A black female employee complained to her supervisor about receiving an anonymous note in her mailbox.  The note appeared to be a federal hunting license authorizing the holder to hunt and kill black people day or night, with or without dogs.  There was also a hand-drawn stick figure with a noose around its neck.

The supervisor first reported the incident to his manager, but neither reported the incident to Human Resources.  They also did not document the incident or interview anyone.  Following this cursory investigation, nothing further was done as no one was able to identify a suspect.  No one even notified the complaining employee that the matter was closed.

Not hearing anything about her complaint, the employee called an employee hotline and also reported the incident to the police.  Her calls triggered a new investigation by the Human Resource department, but no useful information turned up.  Human Resources then ended its investigation concluding that the incident was isolated.

It later turned out that the on-site managers and supervisors were aware of earlier incidents of targeting of black employees, but did not disclose them.

Eight months later, the employee received a similar threatening note and immediately reported it.  She asked why cameras had not been put in the area.  The same threat was received by several other black employees, who also reported it.  This time cameras were installed. Nothing turned up and the investigation again was closed.  The police fingerprinted employees so that in the future any notes could be dusted for prints.

The targeted employee then sued alleging a hostile environment.  While the district court granted the company’s request for summary judgment, the appeals court reversed.  The appeals court was critical of the company’s actions and set out guidance on what should have been done.

First, the company failed to recognize that the racially tinged death threats created a hostile work environment.  The threats should have been immediately reported to the police.

Second, while the company had a discrimination policy, its supervisors and managers did not follow it.  Employers must train supervisors and managers on what they are to do if they receive a complaint and they must be held accountable for enforcement of the policies.

Third, the response to the threats was not prompt, was not calculated to end the harassment, information about past incidents was not timely disclosed, and employees were not interviewed on a timely basis.

Fourth, no additional protection for the employee was provided, cameras were not installed, and security personnel did not offer to walk the employee to and from the parking lot.

Finally, the targeted employee was not told what was happening with the investigation.  The court faulted the company for not doing enough to ensure the safety of its employees and to eliminate the hostile work environment.

It is imperative when there are complaints of harassment, especially those involving physical threats, that they be taken seriously, even to the extent of notifying police.  A thorough investigation must be conducted, appropriate remedial steps must be taken, and the complaining employee must be advised of the outcome of the investigation.

An anonymous threat does not excuse the employer from treating the matter seriously.  While the culprit may not be identified, steps can be taken to ensure the safety of employees, to reinforce company policies, and to provide a safe work environment.  The lack of an adequate response can not only result in liability, but it can also leave employees believing that the company does not care about them, resulting in poor morale and possible lawsuits.

secretsEarlier this month, The New York Times ran another column in its Workalogist series that asked the following question:

Are conversations with a human resources department confidential? I’m contemplating retirement in about three years and would like to gather benefit information from human resources now — but I do not want my supervisor to know. Once I decide, I would like to give three weeks’ notice.

In responding, the Workalogist quotes one SHRM professional as saying that, “An H.R. professional should maintain the employee’s confidentiality to the extent possible.”  But note the caveat: HR is at the “razor’s edge of balancing confidentiality with the overall needs of the business.”  He notes that many workers assume some confidentiality even where it doesn’t exist:

Workers often assume there’s some sort of H.R. parallel to the confidentiality they’d expect from a doctor or a lawyer. That’s not the case, says Debi F. Debiak, a lawyer and labor and employment consultant in Montclair, N.J. Barring circumstances involving, for instance, a medical condition, “there is no legal obligation to maintain confidentiality” about a retirement discussion, she says.

Suzanne Lucas, the Evil HR Lady (her name, not mine), has often touched on this subject in her blog and columns.  She was asked whether it was “illegal” or immoral for the HR representative to forward to the company’s COO an employee’s angry e-mail:

Well, it’s not illegal (she says in her non-lawyer, non legal advice way). HR people are not required to keep a confidence as a doctor, priest or lawyer is. In fact, part of our job is to blab. Which means that I’m also going to suggest that it wasn’t necessarily immoral either.

Indeed, there may be times when such a referral is necessary to protect the company. Complaints of sexual harassment often need to be investigated, or reviewed.  In those instances, employers may not be able to honor a request to keep things “confidential”.

In short, those in human resources should realize that they shouldn’t make promises they can’t keep.  Protecting the company and investigating harassment complaints are two common areas when HR should be speaking up — instead of keeping silent.

The CHRO is screaming for a reboot - like Star Trek
The CHRO Complaint Process is screaming for a reboot – like Star Trek

Lately, I’ve been hearing a lot of complaints about the Connecticut Commission on Human Rights & Opportunities from both attorneys and clients. And I’ve come to one conclusion:

The CHRO Complaint Procedure needs a reboot.

Now, before you dismiss this as a critical column – let’s be clear. I like many reboots.  Sure, the Superman Returns movie paled in comparison to the Christopher Reeve version, but I thought the new Star Trek reboot was pretty snazzy.

Why do movies go through reboots? Because the formula that had worked for the movie series for so long has just stopped working.

Think George Clooney in Batman & Robin and then the reboot with Christian Bale.

And right now, the process that the CHRO has created is just not working. It’s not working for individuals, it’s not working for companies and, I believe, it’s not really working well for the agency itself.  (And note too that I’m not suggesting the agency itself needs a reboot — though some have argued for that — rather, it’s the process as mandated by the law that this post is addressing.)

A reboot doesn’t mean failure; it doesn’t mean to throw out the entire formula. The agency has made some good strides on public outreach, for example, under the new leadership team.  It is closing cases at a good clip and the mediation process seems better than in years past with dedicated staff just for mediations.

And I wouldn’t go so far as to say we live in a post-modern age where it has completely outlived its usefulness.

But the complaint procedure which was reworked a few years ago just isn’t working for anyone. Here’s why:

Continue Reading The CHRO Complaint Process Needs A Reboot

437px-BillCosbyI loved Bill Cosby.

When we first got cable TV as a kid, I must have watched his movie “Himself” a few dozen times after school. His “Chocolate Cake” routine was even something I showed my kids a few years ago.

And I don’t think I missed many episodes of his sitcom either.

When the accusations about him popped up, I did what many people did – just thought they couldn’t be true. I mean it’s BILL COSBY.

And now? I’m just so thoroughly and completely disgusted by him. Repulsed.  The New York magazine article with testimony from so many women is just sickening to read.  The pain that they have endured through the years and the courage they have now is hard to fathom.

But here’s the thing: I shouldn’t have been that surprised. Time and again, my colleagues and I will hear of clients with their own “Bill Cosby.”

I don’t mean it from the drugging women sense. That’s horrible in its own twisted way that hopefully isn’t repeated.  Thankfully that’s one story I haven’t heard in the workplace.

What I mean, though, is the teflon person. The person in your workplace that just couldn’t be what a rumor suggests perhaps they might.  That person who is the complete opposite of what you’re now suspecting.

And what might such a rumor look like? It might be that their resume doesn’t add up. Or those corporate expense account bills aren’t making sense anymore.  Or someone is looking at child pornography on your system, but it seems to linked to your top sales person.

That couldn’t be true. I mean it’s “Joanna!” or “Mike!”

But as I’ve seen and I’m sure other employment lawyers have seen, in our careers, there will be a time or two when it is true.

It’s a kick in the gut. It’s that sickening feeling that you’ve been duped.  You’ve been lied to in your face.

And then you have do the most important thing you can for your company: Instead of ignoring it or getting angry, you need to get your wits about you and investigate.  Get to the bottom of it. Sooner rather than later.

You probably won’t like the findings. But then comes the interesting part: You can decide what to do from there. In some instances, you’ll have to go to the police (in fact, the police may be brought in as part of the investigation even before then).  Or you can work out a deal with the employee. Perhaps allow them to resign with an agreement to repay funds. Or maybe it’s just a straight firing and lawsuit against them.

But the fact is you do have options.

Obviously, it should go without saying that bringing legal advice in to assist is critical. But that’s besides the point here.

May you be lucky to avoid a situation of a model employee who may not be what everyone thinks they are. If you do, though, remember that feeling many of us felt when we learned that even Bill Cosby isn’t who we thought he was.

Today, my colleague Christopher Engler, takes a crack at explaining what happens with FMLA leave when an employee takes works at another job while on FMLA leave.  As Chris explains, not everything about the statute is “common sense.” 

Picture this:

In one scenario, a maintenance worker takes an FMLA leave for “mental distress” but continues to deliver oil through his family business.

In the second, an employee of a travel agency goes out on FMLA leave due to his “extreme fatigue” and is caught working at a local restaurant. Both men are fired.

Is there an FMLA violation?

The federal and Connecticut FMLA both limit employers’ ability to fire workers on FMLA. But if the employer has a policy forbidding outside employment, that may, in some instances, allow an employer to do so.

But employers need to be cautious: The policy must be uniformly applied and the ban must be express. Otherwise, the employer runs afoul of the FMLA if it fires an employee for simply working while on leave.

While the cases and regulations aren’t new, many employers take it for granted that employees can’t work another job while on leave. But the courts are reminding us of what happens when you assume.

In the above scenarios, taken from real cases, both of the employers won because they had clear policies.

Even so, there is a silver lining on this cloud.

If an employer has a policy, it only needs an honest and reasonable belief that a worker violated it to fire the worker. In other words, the courts tend to cut employers slack in investigating FMLA abuse. The Connecticut DOL agrees, “[e]ven if the [employer’s] investigation was poorly done.”

Of course, this doesn’t mean that employers can get complacent or sloppy with their investigations. The point is that courts and agencies prioritize the existence of the policy in these cases.

For that reason, your company should think about adding this type of policy to their handbooks and manuals. Your preferred legal counsel should be able to assist.

With the FMLA, employers shouldn’t take anything for granted — even on something as “common sense” as this approach.

Two stories over the last few weeks have been percolating that may be of interest to employers in Connecticut.  You may not see the impact immediately, but the implications are certainly there.

First, the EEOC is now looking to conduct more direct investigations — that is, investigations that are initiated without any claim by an employee or former employee — to see if gender-based pay bias is out there. 

As reported by Employment Law Daily:

In an effort to combat gender-based pay discrimination, the commission has launched pilot programs at three of its district offices to figure out the best approach to using its authority to conduct direct investigations — investigations initiated without any prior charge of pay discrimination — to determine whether Equal Pay Act violations are occurring.

The article goes on to note that the agency is also looking to see if it can use its authority to root out discrimination based on sexual orientation. That will have less impact in Connecticut, where the laws preventing discrimination on the basis of sexual orientation and gender identity are already on the books. 

Second, the NLRB recently issued a decision that calls into question whether an employer can instruct employees to keep an investigation confidential and not discuss it with co-workers.  It left Jon Hyman, from the Ohio Employer’s Law Blog, “speechless”, who noted today that the EEOC is also taking the same position. 

Numerous blogs have recapped the decision.  Here are a few to take a look at:

  • The In-House Advisor blog was quick to note that the NLRB’s admonition isn’t absolute and that an employer may be justified if: a witness needs protection; evidence is at risk of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover-up.
  • The veteran Employer Law Blog says that the “the NLRB’s position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case. “
  • The New York Labor & Employment Law Report also does a nice job summarizing the key points.

For employers returning from their summer vacations, these new developments may just make your fall a little more interesting. 

 

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.