IMG_8532 (2)You work for a privately-owned multinational conglomerate with a high-profile CEO who loves Twitter and can’t stop talking.

And that CEO, outside of work, has been critical of lots of people. In doing so, however, the CEO has made particular comments about certain women, comments such as:

And there’s more where that came from too.

That said, some people think the CEO is a feminist.  And within the confines of the company, they would argue, he put women in charge of construction projects before it was “fashionable” to do so. And, some would argue, the organization has more female executives than male executives and a large number of these women are paid more.

The question is: Has the CEO created a hostile work environment for women at the workplace?

Of course, we can’t answer this question in a vacuum, because the CEO described above is Donald Trump.  And this isn’t a pure hypothetical; he has reportedly made all of the above statements either recently on the campaign trail or in other public statements.

Some have already jumped into the fray on this issue both here and here taking issue with his behavior.

But frankly, taking aim at The Donald here on whether or not his conduct creates a hostile work environment at his own workplace is a fruitless exercise. Eventually, some enterprising lawyer will take aim at the organization for his comments and he has plenty of lawyers to defend the organization.

Rather, his comments bring up a point that is relevant to other corporations. I cannot imagine another organization that would relish having such comments made by their CEO in almost any other context.

Yes, the equal opportunity offender — that is, the “horrible boss” who speaks poorly of everyone — can work as a defense in cases. But that’s an argument for a court and won’t prevent the lawsuit from being filed with the accompanying publicity that comes with it.

And so, if your CEO or another senior manager is suddenly spouting “truths”, perhaps its best if you remind him or her that there are, in fact, rules for the workplace.  And that your CEO is not Donald Trump.

Of course, in Trump’s case, perhaps there’s a third option: maybe he’s just an entertainer in a “reality” show about running for President.  As a character, maybe he’s just playing a role of a candidate who speaks the “truth” like the character playing the President in the 1993 movie “Dave.”

That might still give him an out to disclaim his statements.

Needless to say, your company and your company’s CEO won’t have that option when faced with a hostile work environment claim.

Finally, today is Election Day.  

And while the pundits tonight will all look forward to what the next four years might bring, it’s worth taking a quick peek back at Obama’s (first?) four years with a review of some of the posts from 2008-9.

Before his term, there were predictions that he would be good for employers, or bad for employers.   But I think that its fair to say that, with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.

You can chalk it up to a variety of reasons — bad economy, Washington gridlock, to name a few — but compared with the prior four years, in my view, employers haven’t had to worry about a lot of federal legislative developments.  (The rise in social media’s impact on employment, I would argue, has been much more significant.)

In 2008 alone, you had the Americans with Disabilities Amendment Act and the expansion of FMLA for military leave.  You also had new regulations for the Family Medical Leave Act.   

Remember what Obama pledged to get done?  A look at what happened showed a stalling out on a variety of issues.  Here are a few examples:

•Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. (NLRB strengthened though impact lessoned as various proposals have been tied up in courts; EFCA never passed and has no reasonable likelihood of doing so)

•Obama and Biden will raise the minimum wage and index it to inflation. (While the minimum wage did increase in July 2009 to $7.25, that was as a result of a 2007 compromise bill. No further changes to minimum wage have been made since.)

•Obama and Biden will expand FMLA to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence. (No substantive changes to FMLA have been made.)

• As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. (Connecticut did pass paid sick leave, but no strong federal support was seen.)

Other bills that have not yet passed include the Employment Non-Discrimination Act, which would prohibit employers from discriminating against employees because of their sexual orientation. 

So what did occur? Among other things: Passage of The Lilly Ledbetter Fair Pay Act (though query whether this has had much impact in the workplace).  And nursing mothers received additional federal protections under “Obamacare”.  The EEOC also released new guidance on the use of criminal records and credit reports.   But overall, the impacts on employers have probably been far less than forecasted.

What do the next four years hold? For that, we’ll just have to wait until tonight.

Thanks to all who came and attended our employment law seminar at the Hartford Club today. As a reminder, we’re running another one on October 18th.  More information is available here.

At today’s seminar, we talked about the need for companies to implement a social media policy and also about how social media can get out of control quickly.

I used, as an example, a tweet from last night’s presidential debate. In the middle of the debate, the following tweet from KitchenAid’s corporate account appeared:

“Obamas gma even knew it was going 2 b bad! ‘She died 3 days b4 he became president’. #nbcpolitics”

Oy. 

That tweet used a “hashtag” that made the tweet easily seen by anyone following NBC News’ coverage of the debate.  The tweet itself was quickly deleted and replaced by a series of other tweets including this one: “It was carelessly sent in error by a member of our Twitter team who, needless to say, won’t be tweeting for us anymore.”

KitchenAid to its credit, has responded swiftly and promptly.  And it has made the most of what was obviously a mistake by a person who ran the Twitter account.

But the damage is already done.  Everyone has now seen it.  And we’re talking about it all over the internet today. 

Could this have been avoided? Yes and no.

First, let’s state the obvious. A tweet like this is just the new version of the “reply all” mistakes we see time and again.  No amount of technology is going to ever prevent a mistake from happening.

But there are ways to reduce the risk of these types of tweets from happening.  How?

Well, PR Daily already recapped some of them here.  They include: making sure that only members (and not interns) have access to your social media accounts; making sure you have a policy that outlines penalties and usage guidelines; and making sure that people who use multiple accounts note that their personal tweets are, well, personal.

Social media policies, as we talked about at today’s seminar, are continuing to evolve.  If you don’t have one yet, get one. If you have one, take a look at it periodically to see if it is still being followed in practice.  And above all else, educate your employees in how social media should be used by your company.

Learn from others. Mistakes happen. But some mistakes can be avoided.

As the week draws to a close, it’s time for another installment of Quick Hits, where I highlight a few blog posts worth a read.

As we continue our series this week of highlighting employment law issues for the candidates, next up is Rep. Paul Ryan.  (For previous posts and groundrules, see here, here, and here.)

Given his record in the House of Representatives, there are plenty of other topics that could be addressed as well including the ADAAA.  But what would you ask Rep. Paul Ryan as it relates to employment law?

And be sure to check out posts from other employment law blogs here, here, here, and here.

All this week, this blog (and other employment law blogs — here, here, here and here) are posting employment law-related questions for the major-party candidates for President and Vice President.  Today’s turn: Mitt Romney.

Courtesy Mitt Romney Campaign

(For a recap of this process — and a reminder that these questions should not be interpreted as being “for” or “against” a candidate — see my post from yesterday.)

  • On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.”  Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is.  Under George W. Bush, it became more pro-business and under Obama, it became more pro-union.  Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?
  • In 1994, as a candidate for Senate, you supported the Employment Non Discrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation.  In 2007, you indicated that you would not support ENDA and that you believed this policy is best implemented at a state level.  Why have you changed your mind on this and why are sexual orientation discrimination policies best left for individual states when we already have federal laws on age, race and gender discrimination?
  • More retaliation claims are filed with the EEOC than any other protected characteristic. Indeed, the Supreme Court — in some cases unanimously — has endorsed a fairly broad view of such claims. Do you believe there is an epidemic of retaliation claims? Do you believe the issue needs to be addressed through legislation?  

What employment law questions would you like to see Mitt Romney address? Feel free to add them in the comment section below.

With a new administration now firmly in place, the President has wasted no time in appointing new chairs of the National Labor Relations Board and the Equal Employment Opportunity Commission. 

The EEOC has the details on the first appointment of Stuart Ishimaru as Acting Chair:

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that President Barack Obama has appointed Stuart J. Ishimaru as Acting Chairman of the EEOC and Christine M. Griffin as Acting Vice Chair.

Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency’s work on race discrimination issues. He also played an instrumental role in the EEOC’s adoption of groundbreaking guidance on gender discrimination against workers with caregiving responsibilities.

The President has also tapped Wilma Liebman as the new Chairman of the NLRB. Details can be found in the NLRB’s press release here.   Several blogs are suggesting that Ms. Liebman’s appointment will signal a shift towards union-friendly decisions.  As one blog recently said:

President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

First appointed by former President Clinton, Liebman has served on the Board since November 14, 1997. Prior to joining the NLRB, Liebman worked at the Federal Mediation and Conciliation Service as Special Assistant to the Director and then as Deputy Director. In addition, Liebman has worked as a lawyer for the NLRB, the International Brotherhood of Teamsters, and the International Union of Bricklayers and Allied Craftsman. She is also an elected member of the Executive Board of the Industrial Relations Research Association and of the College of Labor and Employment Lawyers, Inc. ….

It is evident by this passage that Liebman views with disdain the “political influence” of the business community. As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. Moreover, if the Employee Free Choice Act (EFCA) is ever enacted, the NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way that is favorable to organized labor. As a proponent of unions, Liebman will surely do just that if given the opportunity.

With the change in the administration, the official White House website is now up. It’s still a little sparse now but has such nifty features as an official White House blog. 

Of more relevance to employers and businesses, however, is the detailed list of the new adminstration’s agenda.  While much of it is not terribly "new" (portions were up during the campaign and transition), it still feels more "official now".

You can view the civil rights agenda here, with other areas affecting employers such as disabilities, and paid sick leave and equal pay also detailed.

But what is missing as of early Tuesday afternoon is any reference to the Employee Free Choice Act (EFCA), a sweeping bill that is designed by its proponents to strengthen unions.

Under the Transition site (Change.gov), it was plainly listed under the Economy agenda.  A look at the same page in the official White House site contains a discussion of the Recovery and Reinvestment Plan with no reference to EFCA. 

Even stranger, when you type "EFCA" into the search term, you get no results.  And a search for "Employee Free Choice Act" shows no direct hits either. (Shortly after drafting this post and running the search, the White House site has temporarily gone offline — presumably due to high traffic). 

It’s very early into this new term and perhaps this was merely an oversight, but for those looking for a sign — any sign — that the new President will not make EFCA a top priority, perhaps — just perhaps — this might be it.

Looking to make a change? Or curious about what the new Obama administration will have on its agenda?

Then the new administration website, Change.gov, is for you. It’s now up (but as of 2 p.m., barely running — likely due to the massive traffic the site is facing so give it a little time).   Parts of the site are also still under construction, including a fascinating "America Serves" section.

You can sign up for information, get information about seeking a position in the new administration or get detailed information on the agenda that the new administration is setting in a variety of areas. 

Lest you think that Obama will shift course, the agenda is identical to what he had on his campaign site, but it’s important to revisit it in light of all the ink that’s been spilled on where his priorities will be.  A look at the Economy area lists his "labor" agenda as follows: 

  • Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama and Biden will ensure that his labor appointees support workers’ rights and will work to ban the permanent replacement of striking workers. Obama and Biden will also increase the minimum wage and index it to inflation to ensure it rises every year.
  • Ensure Freedom to Unionize: Obama and Biden believe that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA’s passage and sign it into law.
  • Fight Attacks on Workers’ Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB’s "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
  • Protect Striking Workers: Obama and Biden support the right of workers to bargain collectively and strike if necessary. They will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
  • Raise the Minimum Wage: Barack Obama and Joe Biden will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.

In the "Work/Family" arena, he lists the following as his top priorities:

  • Obama and Biden will double funding for after-school programs, expand the Family Medical Leave Act, provide low-income families with a refundable tax credit to help with their child-care expenses, and encourage flexible work schedules.
  • Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama and Biden will expand it to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
  • Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers. …
  • Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama and Biden will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
  • Expand Flexible Work Arrangements: Obama and Biden will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

Before employers and employees get too worked up about all of the above, remember that we are in the midst of the worst recession in at least a generation.  The problems weren’t created overnight and it’s unrealisitc to expect all of the above to be passed in the first 100 days — and probably not the first 500 days. 

Last night I started crafting a post weaving in the rejection of the Constitutional Convention question in Connecticut, with state election results and the election of Barack Obama.  And yet, in the clinical analysis of what it meant, something else seemed lost — a sense of history and perspective.  Last night seemed bigger than just looking at what laws are likely to be enacted next term.

So, let me leave it to another post to break down what the election results mean to employers. That will come with some time.  (And for those who are really interested, I’ll have more details on a presentation I’m giving on November 11th discussing that very issue.)

But for now, embrace this thought.  Only 44 years ago, Congress passed one of the most sweeping bills still in effect today — the Civil Rights Act of 1964.  And every day, courts in the United States are still using that law to make decisions on dozens of court cases.  Its’ purpose?

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

And now, despite the short history between its passage and today, the nation just elected the first African-American President. 

Whatever your politics, it is a remarkable achievement and, as a history major in college, I feel pretty confident in saying that our nation’s history books start a new chapter today.