It was the last semester of my senior year in college – right after Spring Break – when I heard the news that would forever shape my views on mental illness.

A friend and fellow editor of the college newspaper I worked for, Steven Ochs jumped to his death from one of the many bridges near his hometown in Pittsburgh, PA.

A group of us ended up driving out there across the fields of Pennsylvania to mourn his passing. It was the first time I was a pallbearer at a funeral and I knew then that was something I never wanted to be for a friend again.

Steven was a remarkable young adult.

I wish you could’ve known him.  He wrote amazing columns for our college paper and editorials nearly every weekday.  Thanks to the internet, you can still read a few here.

I can still remember sitting in his newspaper office couch and hearing him talk; he was always a few steps ahead of me.  I thought he had a promising future.

I thought about Steve a bunch last week, when the celebrity suicides of Kate Spade and Anthony Boudrain became headlines.

Those people, along with Steve, seemingly had everything that would want.

And yet.

As anyone who has had a friend or relative commit suicide, there’s a certain amount of second guessing that goes on. What signals did I miss? What could I have done differently? Was I a good enough friend? Why didn’t he ask for help?

And a lot times, it just comes down to a simple question too: Why?

Every suicide of a employee impacts the workplace as well.  And sometimes it is at the workplace itself – but regardless, suicides have been on the rise the last several years. As a Wall Street Journal article from earlier this year noted:

Nationwide, the numbers are small but striking. According to the Bureau of Labor Statistics, suicides at workplaces totaled 291 in 2016, the most recent year of data and the highest number since the government began tallying such events 25 years ago. U.S. suicides overall totaled nearly 45,000 in 2016, a 35% increase compared with 10 years earlier, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics.

Who is most at risk? According to the BLS study, 45- to 54-year-old males had the highest likelihood of committing workplace suicide. And workers in the public sector had a higher propensity for workplace suicide while workers in the private sector suffered the majority of these fatalities. The private industry sectors with the highest propensities for workplace suicide were finance and insurance; professional, scientific and technical services; and health care and social
assistance.

The solutions are far more complex than a simple employment law blog post can capture.  Some of them are rooted in society.  But discussions regarding mental health — and bringing those discussions in the workplace — is often seen as one important step that can be done.  A renewed emphasis on making sure employees know about and use Employee Assistance Programs is also another important step.

HR staff can sometimes be at the front lines.  Figuring out that an employee might need help can be a part of a solution but as we all know, it might still not be enough.

We can only hope that as we raise awareness of this, that we can stop some suicides from occurring so that 25 years from now, someone else isn’t writing a blog post about one of their friends as well.

 

 

Over the last several months, I’ve been asked to do far more sexual harassment prevention trainings than typical and the issue of profanity in the workplace has popped up.

No doubt that much of this is due to the recent spate of cases of very public sexual harassment and assault cases (Thank You Matt Lauer!). This has led to the #metoo and #timesup movements becoming more than a mere hashtag.

But at a recent training, we got into a discussion about whether profanity could ever be used in the workplace.  Does it create a “hostile work environment” under federal anti-discrimination law?

I’m not the only one to think about this question. In fact, the Hostile Work Environment podcast (how appropriate!) tackled this subject a few weeks back — and also delved into the subject about whether an employee’s use of profanity could be protected speech as well.

But one of the most interesting cases I’ve seen on the subject differentiated between different types of profanity (h/t Ohio Employer’s Law Blog for the original cite to this case) and came out of the 11th Circuit early this decade.

Before we go further, let me use the words of the 11th circuit to issue a warning:

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

(I’m still going to keep this post PG-13 but now that you’ve been warned, read on….)

The court’s decision focuses on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”

The court said that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”

And thus begins a discussion of profanity that hasn’t often been seen in the court system.

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

The court then focuses on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The court opines that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”

But what if the workplace just had a lot of profanity?

Then, the court says that might not be enough. “If the environment portrayed by [the Plaintiff at the Company] had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”

For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it.  Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.

One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff.  The court easily dismissed that argument.   Once [the Plaintiff] entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that [the Plaintiff] had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”

 

Ten years ago today, I wrote about the then-Tenth Anniversary of one of the horrible events that made a lasting impact on Connecticut employers.

I recounted the Connecticut Lottery shootings that happened a decade earlier.

Today, marks 20 years. (The CT Mirror has another perspective here.)

The New York Times report of that event is still chilling in its matter of factness:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

Since that time, we’ve had other workplace shootings in Connecticut including one even deadlier (Hartford Distributors) and, of course, the massacre in Sandy Hook.

I’m reminded of a post I did early on that was titled: Are there really any lessons to be learned from evil? In it, I suggested the answer was “perhaps” — if only because employers need to keep reviewing their workplace violence policies and keep figuring out ways to spot trouble before it arises.

Just in 2014 alone, there were over 400 workplace homicides nationwide reported to OSHA.

Indeed, it seems the rare case where workplace violence just pops up out of nowhere.

OSHA does have some resources on the subject — but many of them are starting to be dated. 

One of the more useful items was a set of guidelines issued in 2015 targeting healthcare and social service workers.

It calls on employers to develop workplace violence prevention programs from five building blocks:

  1. Management commitment and employee participation;
  2. Worksite analysis;
  3. Hazard prevention and control;
  4. Safety and health training, and
  5. Recordkeeping and program evaluation.

There are far more details in the report than a blog post could recap but for employers looking to reduce the risk of a workplace shooting at their facility, getting started on your own program is as good a place to start as any.

As we remember the victims of the Connecticut Lottery shooting, may we honor their memories to keep bringing change and safety to our workplaces.

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

My colleague, Jarad Lucan, returns today with a very special post on a ground-breaking week at the NLRB.  For Connecticut employers, the decisions change a lot of what has been going on at the NLRB for the last several years.  

Back in January of 2013, I wrote an article for the Connecticut Law Tribune entitled “For the NLRB, a December to Remember,” which you can read here if you are interested . In that article, I discussed a slew of Obama Administration Labor Board decisions that were handed down in December of 2012 and that construed labor law in a way favorable to employees and unions.

Based on decisions last week from the new Trump Administration Labor Board (issued just before Chairman Philip Miscimarra’s term expired), this December has proven to be another memorable one;  this time, however, employers that are the beneficiaries.

In a decision involving The Boeing Company and its no-camera rule that prohibited employees from using camera enabled devices to capture images and video in the workplace without prior approval, the Labor Board took aim at its 2004 Lutheran Heritage Village-Livonia decision and the standard from that decision applicable to workplace rules and policies.

Under the Lutheran Heritage standard, an employer’s facially neutral workplace rule was determined to be unlawful if it would be “reasonably construed” by an employee to prohibit or restrict the employee’s rights afforded by the National Labor Relations Act.

For years, that standard had been used to find unlawful countless employer policies related to confidentiality, privacy, social media use, and courtesy.

In place of the Lutheran Heritage standard, the Labor Board, in The Boeing Company case, established what amounts to a balancing test.

Under the a new test, the Labor Board first looks at whether the rule or policy, when reasonably interpreted, would potentially interfere with employee rights under the Act.

If it does, the Labor Board then looks at two things:  (1) the nature and extent of the potential impact on employee rights protected by the Act; and (2) the legitimate justifications associated with the rule.  If the justifications outweigh the impact, the rule will be lawful.

The decision also lays out three categories into which the Labor Board will classify rules.

The first category covers rules that are legal in all cases because they cannot be reasonably interpreted to interfere with employees’ rights or because any interference is outweighed by business interests; the second covers rules that are legal in some cases depending on their application; and the third covers rules that are always illegal because they interfere with employees’ rights in a way not outweighed by business interests.

Applying the new test to The Boeing Company no-camera rule, the Labor Board determined that the rule was lawful.

The Labor Board reasoned that the rule potentially affected employees’ rights protected by the Act, but that the impact was comparatively slight and outweighed by important business justifications, including, in that case, national security interests.

In light of this decision, employers should take a fresh look at their workplace rules and policies.  However, unlike such reviews following previous Labor Board rulings when employers would rush to revise or eliminate rules held to be invalid, employers should consider each rule and the justification behind the rule.

In another big move, but in a decision likely to impact less employers, the Trump Administration Labor Board majority voted to overturn the Obama Administration Labor Board’s controversial 2015 Browning-Ferris Industries ruling, which I wrote about here.

In Browning-Ferris Industries, the Labor Board held that two partners in a business relationship are joint employers when one has even “indirect control” over the other’s employees.

The Labor Board’s decision restored the Board’s prior “direct control” standard for weighing joint employer status.  As the Labor Board majority stated, “[w]e return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world.”

Additionally, the Trump Administration Labor Board majority voted to overturn the 2011 Specialty Healthcare “Micro-Unit” standard.

That decision related to the appropriateness of the make-up of a newly petitioned-for bargaining unit and seemingly placed great emphasis on the extent in which the petitioned-for unit was organized.

Under that standard, and employer could only add to the individuals included in a petitioned-for unit if it could prove an overwhelming community of interests.

The Labor Board has now returned to previous precedent and will examine whether petitioned-for employees share a community of interests “sufficiently distinct” from excluded employees to warrant their own unit.

In the coming months, the Trump Administration Labor Board is likely to overturn other labor law decisions, including those related to college student’s rights to unionize, and employee use of employer e-mail systems to engage in protected concerted activities, among others.

Such is the nature of a labor board that pays little regard to precedent and instead shifts according to the administration in power.

Stay tuned.

Yesterday, I had the opportunity to speak to the IASA Northeastern Conference on a favorite topic of mine of late — Privacy and Data Breaches in the workplace.

Of course, that sounds kinda of boring.

So my presentation is actually called the title of this post: “The Rise of Smartphone Fueled, Social Media Addicted Workplace Zombies.”

Much catchier right?

Speaking before the Insurance Accounting & Systems Association (IASA) Northeastern Chapter at their 54th Annual Regional Conference was great fun though.

In my talk, I highlighted items like Business E-mail Compromise scams, Ransomware, and yes, even workplace zombies.

What do I mean by that? Well, too many of us (including me at times) stare at our phones and sometimes respond to e-mails or click without thinking.  (Think Before You Click would make the name of a good book; fortunately, I wrote a chapter in that very book a while back.)

Protecting workplace data IS about thinking. It’s about protecting personnel files, or benefit information, or retirement plan data.  It’s about protecting trade secrets or just plain confidential information.

It’s about building a CULTURE of data privacy. Where employees buy in that protecting data is a core value and where employees are REWARDED for good data practices while enforcement (with a bit of punishment where needed) is encouraged by all.

It’s not the most exciting topic to be sure but everyone wants to be protected from the zombies, right?

I gave a similar talk early this summer as keynote lunch speaker for the ADNET Worksmart conference and it worked so well, word got around.  Maybe data privacy can be interesting after all.

My thanks to IASA for the invitation and opportunity to speak to the group yesterday.

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.

“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?

Shorter is better.

Why? The slang TL;DR comes to mind.

But it turns out there’s an educational component too — at least according to the results of a new study that examined workplace contracts.

In the study, published in the Journal of Personality & Social Psychology and recapped by Insights by Stanford Business School, “the researchers found that workers whose contracts contained more general language spent more time on their tasks, generated more original ideas, and were more likely to cooperate with others. They were also more likely to return for future work with the same employer, underscoring the durable and long-lasting nature of the effect.”

In other words, contracts that contained pages upon pages of specific do’s and don’t for workers, ended up harming the employment relationship.

Instead, researchers found that “the more general contracts increased people’s sense of autonomy over their work.”

This isn’t the first time I’ve talked about the need to write employment contracts in plain English — something that is at the core of a book by Ken Adams whose work has appeared on this blog before.

It turns out that even “minimal changes”, in the words of one of the study’s authors, can have “important consequences.  Especially when it comes to behaviors that are notoriously difficult to include in contracts, such as increasing effort, task persistence, and instilling a stronger sense of autonomy, which leads to higher levels of intrinsic motivation. Reducing the specificity of contractual language can also increase creativity and cooperation.”

From a legal perspective, I’ll blame some lawyers for introducing some language in a contract that can be overkill at times.

(Don’t think lawyers are at least partly to blame for long contracts? Next time you see a “This space is intentionally blank” line in a contract, rest assured that it probably came from a lawyer.)

A few years ago, our practice group went through a standard separation agreement template to remove the “Whereas” clauses and the “Definitions”  — all in an attempt to simplify the agreement. The process took months.  Simplification does not necessarily mean increasing risk. It just takes more time.

Just ask Mark Twain (actually don’t — it’s a misattributed quote.)

Of course, you probably don’t need me to tell you that shorter is better. I just read the abstract and not the entire article.

After all: TL;DR.

When was the last time you said you’re sorry to someone at work.  Last week? Last month? Last year? Never?

There isn’t a right answer to this but I was thinking about this yesterday on the Jewish New Year.

Jews are asked to spend the next 10 days to reflect on the past year and ask those who they may have slighted in last year for forgiveness.

Call it prep work for Yom Kippur – the Day of Atonement.

First, an acknowledgement (apology?) up front: This isn’t the firm time I’ve written about workplace apologies.

Back then, I referred you to the SorryWatch blog, which tracks good, bad and ugly apologies.  (There is also a category for “Evil Twin” apologies too. Worth checking out just for that.)

More recently, the blog authors recount the apologies of the Royal Canadian Mountain Police in settlement of a massive discrimination and workplace harassment claim a while back.

It’s a terrific and rare example of the power of an apology in the right circumstance.  You can read the whole thing here, but here’s a brief cut from it:

Instead of succeeding and thriving in a supportive and inclusive workplace, many women have suffered careers scarred by gender and sexual discrimination, bullying and harassment. …

Harassment and the lack of effective systems and processes to have prevented it and eliminated it from our workplace is absolutely at odds with what the RCMP is supposed to be. It is at odds with what we all need the RCMP to be.

To the representative plaintiffs here today: Janet Merlo, who has so courageously taken the lead to represent so many women who have been adversely affected, and to Linda Davidson and all the women you represent; indeed to all the women who have been impacted by the Force’s failure to have protected your experience at work, and on behalf of every leader, supervisor or manager, every Commissioner: I stand humbly before you and solemnly offer our sincere apology.

You came to the RCMP wanting to personally contribute to your community and we failed you. We hurt you. For that, I am truly sorry. You can now take some comfort in knowing that you have made a difference. Because of you, your courage and your refusal to be silenced, the RCMP will never be the same.

I must also apologize to all Canadians. I know how disappointed you’ve been with the Force as you heard some of these very public and shameful examples of disgraceful conduct within our ranks.

The SorryWatch blog gives a big thumbs up to the apology because it meets their suggestions for a good apology.  There are five steps to lay the foundation for a good apology:

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It won’t work in all instances. But in some it will.

So have your employees say “I’m sorry” to one another when appropriate; it may just prevent your next discrimination case from happening.