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How not to let an employee go

Robert Dobkin worked at U.S. Seal Manufacturers starting in 1962.  According to Mr. Dobkin, he often worked 12 hour days with no overtime pay.  One day in October 2013, he was allegedly summoned to a meeting where he was terminated as part of a “workforce reduction.”  However, the reduction consisted of one employee, Mr. Dobkin.  In the lawsuit he (not surprisingly) recently filed in federal court, Mr. Dobkin claims age discrimination .  He is also seeking unpaid overtime to which he claims he is entitled.

This case, though in its infancy, is instructive for employers on a couple of fronts.  First, be careful with the language you use in separating employees.  For example, don’t term a separation a “workforce reduction” if only one employee is being let go.  Second, take extra care with long-term employees.  Just because someone has been with you for a long time does not mean he or she is entitled to remain, but neither should you casually kick them to the curb.  And finally, check, double check, and triple check your pay practices.  If you’ve got non-exempt employees being treated as exempt (e.g., working 12 hour days and not earning overtime), you’re looking at some major liability.


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Workplace investigation update: the Miami Dolphins investigation report is in

The report commissioned by the NFL to look into allegations of bullying raised by former Dolphins teammate Jonathan Martin by offensive lineman Richie Incognito was completed last week.  (Click here to see the 144 page report)  It concluded that three offensive linemen (apt titles, yes?) engaged in a pattern of bullying and harassment towards Martin and two others.  The New York Times summed up the findings nicely: It determined, at bottom, that the harassment of Martin resembled “a classic case of bullying, where persons who are in a position of power harass the less powerful.”

There are many lessons to be learned from this case for workplace investigators, HR professionals, and employers.  Here are a few:

  • Bullying is a real thing with tangible consequences.  It’s been a “hot topic” for HR for some time now, and this case will certainly contribute to our national conversation on it.
  • Workplace culture is critical when it comes to defining an organization and its success, both perceived and actual.  Its importance cannot be overstated.  HR leaders and business owners should pay attention to it upfront, so as not to be caught unawares.  Dolphins owner Stephen Ross is probably wishing he had done so.
  • This investigation, headed by attorney Ted Wells at Paul, Weiss, shows us what “thorough” really means.  Wells and his team interviewed over 100 witnesses and reviewed countless emails and text messages.  No one can claim this was a rush job.
  • Notwithstanding the thoroughness of the investigation, its findings are not immune from dispute.  Incognito’s lawyer claims Wells got it all wrong.  This is common in investigations – the party against whom the findings are made disputes the findings.  What can a workplace investigator do?  Expect disagreement and dissatisfaction, and take comfort in the process.  Workplace investigators are not likely to win any popularity contests anytime soon.  That’s not why we do what we do.

It will be fascinating to see how the NFL responds.  It has indicated it will do so after reviewing the report, “as appropriate.”  The report’s recommendation is pretty simple:  “We encourage the creation of new workplace conduct rules and guidelines that will help ensure that players respect each other as professionals and people” (emphasis added).


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Take extra care with independent contractor designations

The Department of Labor hates it when employers misclassify employees as independent contractors.  The employees miss out on FLSA protections like minimum wage and overtime, not to mention benefits and other perks of employment.   The IRS is none too fond of these misclassifications either, as they lose out on payroll taxes.  Did you know there is currently a Senate bill aimed at punishing employers who misclassify independent contractors?  The Payroll Fraud Prevention was introduced to the Senate in November 2013.  If passed, it would impose requirements on employers to not only designate each individual working for them as an “employee” or an “independent contractor,” but also to notify each individual of his or her designation, as well as information on how to contact the DOL if they have questions or concerns.  The bill would also impose stiff penalties on employers who misclassify.

I’m not sure the bill is too likely to pass, but it’s something to keep an eye on.  In any event, it’s an indication this is an area ripe for problems for employers who misclassify.  If you’ve got independent contractors, you’d be wise to have counsel double check the designations.

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Workplace investigations: balancing “prompt” and “thorough”

If there are two buzzwords that capture what the courts are looking for in workplace investigations, they are prompt and thorough.  Prompt, meaning once an employer is on notice of the need to investigate, it should get the ball rolling quickly.  And thorough, meaning there should be a deliberate and objective process wherein both parties have the opportunity to present their evidence and/or defend themselves.  There are times where it can be difficult for an investigator to strike the right balance between these two principles.  While it’s generally fairly easy to start an investigation in a timely manner, finishing it in a timely manner can be a challenge.  This is especially so when there are many witnesses and documentary or other evidence for an investigator to sift through, not to mention other matters competing for his or her attention.  But investigators must do their best to be prompt in ending investigations, not just in starting them.

Miami Dolphins player Richie Incognito, currently the subject of an investigation into allegations of bullying and harassment, points out why in his recent tweet: “Paul, Weiss, Rifkind — Really taking your time on this one. Not like my career and life have been in the balance for 3 months.”  Paul Weiss is the law firm investigating the allegations and has indicated it will have its report done next week.  I’m confident the firm is doing its best to get its hands around the wide-reaching allegations.  After all, assessing an organizational culture takes time.  But Incognito’s tweet should serve as a reminder to all of us workplace investigators.  While we go about our days and investigate, people’s lives are on hold.

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Some tips on managing intermittent leave under the FMLA

Intermittent leave, which is permitted under the FMLA to deal with serious health conditions, can be incredibly disruptive to the workplace.  But the FMLA notice rules provide employers with some tools to manage such leaves to minimize disruption.  Where the need for leave is foreseeable, employees must provide 30 days notice.  When it is not foreseeable, employees must provide as much notice as possible.  Where do doctors appointments fit into this scheme?  When an appointment is for a serious health condition, employees can take them during working hours.  However, the notice rules apply and should be enforced.

In the recent case of Hager v. Department of Health, the plaintiff received regular medical attention for her cataracts.  On one occasion her supervisor called her to a meeting.  She stated she could not attend, as she had a doctor’s appointment that day.  Her supervisor instructed her to cancel the appointment and attend the meeting.  Following her subsequent termination, she sued and alleged FMLA interference.  The Eighth Circuit Court of Appeals threw out her case, as she had not provided her supervisor with notice of the impending appointment.  Having failed to comply with the FMLA’s requirements, she could not claim a violation.

Takeaway: when training supervisors on FMLA compliance, make sure they know how to enforce the notice rules.  And ensure some centralized decision-making (e.g. HR) before taking disciplinary action against someone with FMLA protection.


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What’s the best way to talk to pregnant employees?

I sometimes joke in my training sessions that managers would be wise to say nothing when it comes to pregnancy other than telling an expectant mom “you’re glowing.”  Certainly, negative comments about an employee’s pregnancy are a no-no.  But what about talking to pregnant employees about their ability, or lack thereof, to complete their job duties?  It can be a tricky course to navigate.

To start with, what are the laws at play?  The Pregnancy Discrimination Act (PDA), which is part of Title VII.  Maybe the FMLA.  And in light of the ADA Amendments Act, that law as well.  While the courts are just starting to sort out how the ADAAA plays out, it’s safe to assume it applies to physical impairments caused by the (thankfully) temporary condition of pregnancy.  The EEOC definitely thinks so.  It has identified pregnancy-related accommodations as one of its top priorities.

OK, so the lay of the land is that employers need to accommodate pregnancy-related disabilities.  How best to do that?  As with all disabilities under the ADA, it starts with the interactive process.  A pregnant employee who wants an accommodation generally has to ask for one.  Once she does, the employer should participate in a dialogue to find an accommodation that works for her while still ensuring she can perform the essential functions of the job.  Some typical examples of successful pregnancy-related accommodations include: lifting aids, reserved parking, periodic rest breaks, and allowing for periodic sitting in jobs that require a lot of standing.

Train managers to spot accommodation issues.  Depending on the organization, it might be appropriate for managers to go ahead and make accommodations where it is easy to do so.  Or, a centralized decision-making process might be more appropriate (i.e., HR).  The key is to make managers aware that pregnant employees may be entitled to accommodations.  So they should not be making flat out denials of requests for accommodations.

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Do you do workplace investigations? Think about AWI

I’ve blogged before about the Association of Workplace Investigators, an organization dedicated to enhancing the quality of, as the name suggests, workplace investigations.  I’m holding a Cleveland Local Circle meeting Monday February 10 at noon.  It’s a great way to network and share ideas, best practices, and war stories with others doing the same thing.  Interested?  Message me for details.

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A refresher on the breastfeeding at work rules

You probably know that the Affordable Care Act amended the FLSA to provide for breastfeeding/expressing milk breaks at work.  Here are the deets:  Employers have to provide “reasonable break time” for new moms (up to a year) to express milk at work (typically, that means pumping).  What will be considered reasonable will vary, depending on the woman’s needs, both in terms of frequency and length of breaks.  A private space has to be provided for this purpose, and it can’t be a restroom.  The time does not have to be paid, unless the employer already provides compensated breaks (in which case, the nursing mother should be treated the same as everyone else).

Click here for the fact sheet from the Department of Labor in the issue.



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Workplace investigations into allegations of bullying

Bullying is a hot topic these days.  Though it is not per se illegal, many employers have anti-bullying policies, in recognition of the significant toll bullying takes on the work environment.  Even in the absence of such a policy, employers are wise to investigate bullying claims, as they can often morph into viable legal claims.  (See my prior post about that here).  In addition to the traditional workplace, claims of bullying are on the rise in the world of sports (e.g., the Miami Dolphins ongoing investigation).

Rutgers University recently conducted an investigation into allegations of bullying made by a football player against an assistant coach.  The investigation did not substantiate the allegations, but from what I can tell from this article, the school did an outstanding job responding to and investigating the claims of bullying.  According to the Associated Press, a law firm was immediately retained to investigate.  The firm interviewed nearly forty witnesses and looked at numerous documents.  It then made detailed findings of fact, including on how the university responded to the allegations (that is, promptly and thoroughly).  Job well done.

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The NLRB and social media in 2014

The past couple of years have seen a lot of NLRB action when it comes to looking at employers’ policies through the lens of the NLRA, which applies to all employers, regardless of whether they are unionized or not.  If you’ve been paying attention, you know there’s been a lot of confusion as of late as to the status of the NLRB and its decisions, given the pending Noel Canning case before the United States Supreme Court, addressing whether President Obama’s recess appointments to the NLRB pass constitutional muster.  Depending on how the Court resolves the case, many recent Board decisions could be invalidated.

So in plain English, what does this mean for employers?  Pay close attention.  The NLRB is indicating it intends to remain an active force in non-union workplaces around the country, especially when it comes to social media.  Chairman Mark Pierce and Board member Philip Miscimarra recently made public statements to the effect that the Board will continue to place emphasis in this area.  Chairman Pierce also indicated new social media standards could be forthcoming soon.

For now, employers should review their social media policies (and really all policies that could arguably impact the rights of employees to engage in “protected concerted activity”).  Talk to HR and counsel, and keep your heads up.

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Is “thug” the new n-word?

I was listening to the Sound of Ideas on NPR this morning on my way to see a client.  The conversation was about the controversy surrounding Seahawks cornerback Richard Sherman.  Sherman made a game-winning interception a week and a half ago, resulting in his team making it to this Sunday’s Superbowl.  After the game he spoke to a reporter, stating

“I’m the best corner in the game. When you try me with a sorry receiver like Crabtree, that’s the result you gonna get. Don’t you ever talk about me. [...] Don’t you open your mouth about the best or I’m gonna shut it for you real quick.”

The comment, and the vigor with which he made it, set off a media whirlwind, with some calling Sherman a “thug.”  Sherman responded by suggesting “thug” is just another way of calling him the n-word.  Is it?  The entire hour of today’s Sound of Ideas was devoted to that question, in the broader context of athletes, race, and American culture.  While there were as many opinions on the issue as they were guests on the show, the question itself raises an important issue for employers and HR professionals.

People have varying degrees of sensitivity when it comes to potentially race-related references.  It’s important to be mindful of these differences as we go about our workplaces.  Treating people with respect and having a heightened awareness to cultural sensitivities can be the perfect antidote to potential problems.  This starts from the top in any organization and is best trickled down through training.

NFL: NFC Championship-San Francisco 49ers at Seattle Seahawks

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Retaliation 201 – you can’t retaliate against someone associated with a person who engaged in protected activity

The basic premise of the retaliation prohibition is that an employer can’t take an adverse action against someone who engaged in protected activity.  But remember, this protection also extends to those closely associated with the covered individual.  How close it close enough?  Well, it depends on the facts, but the courts have provided some contours (i.e., a BFF or spouse is close enough, a mere acquaintance is not).

Wal-Mart recently missed the boat on this by refusing to hire an employee’s adult children, allegedly because the employee (aka mom) had filed a sex discrimination lawsuit.  The EEOC pursued the case and obtained a nearly 100,000 settlement for the plaintiffs.  Wal-Mart also agreed to to train its managers on retaliation.

The case is a good reminder that retaliation remains a hot topic.  The EEOC spokesperson on the case made the following statement:

“Retaliation continues to be a high priority for the EEOC – it always was, and under our national Strategic Enforcement Plan, preserving access to the legal system is especially emphasized. We now receive more retaliation charges than any other kind of discrimination charges — over 42 percent of our charges contain retaliation allegations.”

Takeaway: Train your managers on the retaliation prohibitions.  They are broader than one might think.

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Think a temporary disability isn’t covered by the ADA? Think again.

It used to be almost black letter law that a temporary disability (e.g., a broken bone) did not qualify as a disability under the Americans with Disabilities Act (“ADA”).  Thus, if an employee couldn’t work because of such a temporary impairment, the employer had no obligation to reasonably accommodate or engage in the interactive process.  But then came the ADA Amendments Act of 2008 (“ADAAA”), which greatly expanded the definition of a disability.  The legislative changes were meant to shift the focus from whether an employee had a “disability” to whether the employer made or attempted to make a reasonable accommodation.  Judging from a Fourth Circuit case decided last week, mission accomplished.

In Summers v. Altarum Institute, the court found in favor of an employee who was rendered incapacitated by an accident.  He broke both legs and damaged numerous tendons.  His anticipated recovery time was seven months.  The employee sought to work from home during his recuperation.  Instead of considering the accommodation or otherwise engaging in the interactive process, the employer canned him.

The lower court bought the employer’s argument that the employee was not protected by the ADA due to the temporary nature of his disability.  But confirming a sea change in the post-ADAAA world, the appellate court reversed.  It noted, though, that not all temporary impairments will trigger ADA coverage; they must be “sufficiently severe.”  The employee in this case met the threshold sufficient to allow the case to proceed.

Takeaway: Beware the ADAAA – it covers far more than the original ADA did.  Make sure your supervisors understand the changes and know how to react to requests for reasonable accommodations.


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What kind of remedial action should an employer take when faced with sexual harassment?

More than the employer in the recent case of Sanders v. Christus Santa Rosa PASC.  In that case, a nurse complained internally about sexual harassment from a doctor, including making sexual advances, following her into a utility closet and telling her she’s “sexy,” showing her a photo of a man giving a woman oral sex, and showing her a video of a woman having sex with a horse.  (I can’t make this *&!! up).  The employer responded promptly, but query whether sufficiently.

The nurse was moved to an area where she would have no contact with the doctor.  The employer spoke to the doctor and asked him to apologize to the nurse.  According to the doctor, he said he would be happy to apologize for making her uncomfortable, even though he did not do anything wrong.  The employer characterized this as a “verbal reprimand,” but the federal court hearing the case did not agree.  This was not clearly disciplinary action, thus the court questioned whether the employer used “reasonable care” to remediate the harassment.

Since the court declined to answer the question in the affirmative, a jury will now decide how the employer did.  That’s not an enviable position to be in.  Just picture the poor jurors having to see the horse video!

Takeaway: If an employer knows about harassment, it has a duty to take remedial action sufficient to end the harassment.  Simply telling someone to apologize or knock it off may not be enough.  Given the severity of the alleged conduct, I think the doctor in this case should have been disciplined far more severely.


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A harassment complaints hotline – Governor Cuomo’s smart move

New York Governor Cuomo proposed a sexual harassment complaints hotline for all government employees.  His proposal is in response to a number of recent harassment complaints that have gone unanswered.  As just one example, former Assemblyman Dennis Gabryszak is alleged to have sexually harassed several women in his office.  They complained to his chief of staff, who did nothing.

If you know anything about harassment, you know the absolute worst thing an employer can do is not respond to employee complaints.  But when the person who receives the complaints reports to the alleged harasser, what do you expect?  It’s a bad situation all around.  Which is why it is so very important to have a good complaint protocol in place – one that tells employees what their options are if they feel they have suffered harassment or discrimination.  Governor Cuomo’s idea is a great one.  An official explained “We want to send a clear message that this isn’t going to be tolerated and anyone who feels that they’ve been a victim of sexual harassment has a safe place to go where their concerns will be thoroughly investigated and acted upon.”  Yes, exactly.

If your organization does not have such a system in place, seriously consider one.  It could be a hotline, a designated outside HR consultant (moi), or a truly independent internal person.


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Discrimination in a word: stereotypes

If I had to sum up discrimination using only one word, I would pick stereotypes.  More often than not, workplace discrimination occurs when we make assumptions about others who are different than us – by race, religion, gender, or national origin, to name a few.  Why do we stereotype?  Part of it is simple neuroscience.  Our brains are hardwired to detect differences so that we can react to them in a way that helps ensure our survival (think “fight or flight”).  While this evolutionary tendency is beneficial in many ways, it can get us into trouble, too.

Making assumptions about someone based on a protected category – as natural as it may be – is just plain illegal in the employment context.  One area stereotyping occurs that we may not be as familiar with is color-based discrimination.  You know Title VII covers race, religion, and national origin.  Did you know it also covers “color”?  What exactly is color discrimination?  Treating someone adversely based on the pigmentation of their skin.  In other words, color discrimination most commonly happens within a particular racial category.

Oprah did a story on colorism faced by lighter skinned African Americans recently.  Colorism sometime takes the form of lighter skinned African Americans discriminating against darker skinned members of their race.  As Oprah’s segment showed, the reverse happens as well.  One woman explained that because of her lighter-toned skin, many of her African American peers treated her poorly and called her names.  She was basically accused of “not being black enough” and thinking of herself as prettier than her peers, a view she said she did not actually hold.  She said she faced racism from other races and colorism from members of her race.  Talk about a rock and a hard place.

The problem, in a word, is stereotypes.  We need to be aware of those we hold, understanding that stereotyping happens naturally for most of us.  Only with an increased awareness can we move beyond them.

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Pregnancy discrimination even in the face of a facially neutral light duty policy? Maybe, says the Sixth Circuit

The Pregnancy Discrimination Act generally demands that pregnant employees be treated the same as other employees – no better, no less.  So there have been cases finding no violation of the PDA where an employer applies a neutral policy – such as a leave of absence policy – to a pregnant employee, just the same as it would have if the employee had not been pregnant.

That’s why the Sixth Circuit’s decision in Latowski v. Northwoods Nursing Center last month is so surprising.  Jennifer Latowski’s doctor placed her on a 50 pound lifting restriction due to her pregnancy.  Her employer had a light duty policy that provided for light duty work only if the employee was injured on the job.  Since presumably Ms. Latowski’s condition did not occur on the job (if it did we might be talking about some other statutes), the employer reasoned, it did not need to offer light duty.  Thus, finding no work she could do, it terminated her employment.

In allowing the case to proceed to trial, the Sixth Circuit noted the employer did not apply this seemingly neutral policy across the board.  Other non-pregnant employees who were not injured at work were provided with light duty work.  Also, high-level managers made statements the court construed to be disparaging of pregnancy, such as that Ms. Latowski “wouldn’t want to lose her baby” and her “belly would be in the way.”  The combination of the statements and the apparent inconsistent application of the policy led the court to decide to let a jury decide – never good news for an employer.

Takeaways:  Make sure policies are applied consistently.  Have a centralized decision-making process for these types of decisions; don’t let supervisors make case-by-case decisions in a vacuum.  Also, train supervisors on these issues: the importance of consistency, how to apply policies, and how to avoid the appearance of bias.

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A workplace investigation guarantees a boost to your defense, right?

Not necessarily.  It depends on how good the investigation is.  Take the recent case of Castelluccio v. IBM, decided last month by a Connecticut federal court.  An employee who had just been separated complained of discrimination.  IBM’s internal HR representative conducted an investigation and found no evidence of discrimination.  In the subsequent lawsuit, the employee tried to keep the investigation out of evidence before the jury.  The court granted his request, finding fault with the investigation, thus mitigating its “probative value.”

What was wrong with the investigation?  The court criticized the fact that it was conducted internally, deeming it “one-sided.”  The employer would have done better to retain a neutral, outside investigator.  The court also took issue with the fact that once the employee signed a severance agreement, the investigation ceased.  This was further evidence that the investigation was really not intended to get to the bottom of the discrimination allegation.

Takeaways: consider using outside investigators where appropriate.  And make sure all workplace investigations are really intended to ascertain what happened – not merely to foreclose litigation.

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What to tell employees when they complain about “preferential” treatment (i.e., reasonable accommodations for other employees)

Not much.  Employees are not entitled to know what other employees are going through in terms of ADA-qualifying issues.  Some disabilities are obvious, but for those that are not, there is simply no right to know.  I’ve counseled many employers who don’t know how to respond to employee complaints that others are receiving what they perceive as preferential treatment.  If the so-called preference is really just a reasonable accommodation under the ADA, employers should be careful not to divulge confidential information.

A recent case shows how an employer walked this line just right.  In Lichty v. Allina Health, a nurse who returned from FMLA leave had lifting restrictions. Co-workers complained that she wasn’t doing her fair share.  The employer responded by telling the co-workers that accommodations were private and they were simply complying with legal requirements.  Smart move, because when the nurse later sued over her performance-based termination, the court tossed the case.

Also note that if the co-workers had engaged in harassing behavior towards the nurse based on the accommodation or the FMLA leave, the employer would have had an obligation to stop the harassment.

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Workplace investigation no-no: not following up with relevant witnesses

The University of Connecticut is learning this one the hard way.  The Department of Education is investigating the university for alleged violations of Title IX.  According to some student complaints, campus police were charged with investigating instances of sexual assault and/or rape.  But they did not speak to all relevant witnesses, then closed the investigation without findings, citing a lack of information.  This kind of (alleged) haphazard investigation epitomizes what not to do when charged with investigating a serious complaint.

Incidentally, the Department of Education is taking a close look at how colleges and universities across the nation respond to this type of complaint.  For example, Emerson College is also facing a Department of Education investigation for mishandling complaints of sexual assault.

A couple of important takeaways for employers: Take complaints of harassment seriously, very seriously.  Investigate them throughly.  Make sure your selected investigators are capable and experienced.


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What Chris Christie’s traffic scandal can teach us about workplace culture

You’ve no doubt heard about the “Bridgegate” scandal surrounding New Jersey Governor Christie’s office.  Earlier this week it came to light that several high-level aides in Christie’s office orchestrated a massive traffic jam on the George Washington Bridge (connecting Fort Lee, New Jersey and Manhattan).  The move was intended to punish the mayor of Fort Lee, who apparently did not support Christie in his most recent bid for the governorship.  Christie responded that he was shocked and had no idea what his aides had been up to.  The pundits are all over the place on whether or not they believe him.  Whatever his involvement in this particular political debacle, it is reasonable to assume that the workplace culture was one in which these types of behaviors were condoned and even encouraged.

It is generally true that employees look to their leaders to set the tone on how to behave in the workplace.  If Christie’s management style was (is) to engage in  petty turf battles, punish those who did not support him politically and other types of skullduggery, his message may have trickled down to his employees.

Workplace culture and behavioral expectations are set at the highest levels of any organization.  What can HR do to ensure the right message is sent?  For starters, get executive buy-in for cultural initiatives (via policies and training) like respect in the workplace.  Also, lead by example.


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Can you talk about retirement with employees?

Yes, but . . . .  Be careful not to run afoul of the Age Discrimination in Employment Act (“ADEA”).  How do you do this?  By being even-handed in your discussions on retirement (in other words, don’t single out older employees or assume they want to retire).  If you provide retirement education on 401Ks and the like, provide it to all employees.  Direct all retirement-related questions to a designated person.  Most important of all, make sure your managers understand this (that means training).  It can look really, really bad if a manager inquires about an employee’s retirement plans and shortly thereafter takes some kind of adverse action, even if the two are unrelated.

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Another NFL investigation underway, and an important employer lesson

We workplace investigation geeks are following the Miami Dolphins investigation involving allegations of harassment made by former Dolphins tackle Jonathan Martin.  Now there’s another NFL investigation taking up time, money and press.  The Minnesota Vikings retained two lawyers to conduct an investigation into allegations, made via a blog post, by former punter Chris Kluwe.  Kluwe claimed he was dropped from the team based on his public stance in favor of gay marriage.  The blog posting was the first the team executives heard of the claim.  They responded quickly, retaining workplace investigators to review and assess the allegations.  The investigation is now underway.

Big Lesson: Social media and Investigations.  Employers beware.  No  matter how you learn of an employee or former employee complaint, be it via Facebook, twitter, or a random blog post, take it seriously.  Kudos to the Vikings for responding quickly and taking the claim seriously.


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A claim to watch out for in 2014: Retaliation

Calling retaliation “one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan,” the agency filed two retaliation cases in the past couple of weeks.  One was on behalf of a Michigan security guard who was fired after he complained about another guard sexually harassing a patron.  The other was on behalf of a gas station manager who was fired after she filed an EEOC charge.  (See the press releases here and here).

What’s the best way to avoid retaliation in your workplace?  One word: training.  Make sure all supervisory employees know the rules, which are not always intuitive.  Retaliation is illegal, even if the underlying claim (i.e., for harassment or discrimination or some other kind of unlawful practice) has no merit.  If you haven’t done EEO or harassment training in the past couple of years, there really is no time like the present.

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New year, new resolutions?

Happy New Year!  I am back from a holiday induced blogging break and excited to share updates and insights in 2014.  If you’re like most people I know, you’ve got a list of resolutions for the new year.  Some of them may even be professional in nature, related to HR.  I heard a very cool sentiment about resolutions recently that I think has relevance to all of us who live, in large or small part, in the world of employment law and human resources.  Every year hundreds of millions of people make resolutions for the upcoming twelve months.  Two weeks in, the vast majority have already given up.  Two months in, the numbers are even more striking.  Why is this?  We tend to set lofty goals, often with no concrete plan in place on how to achieve them.

So what’s a better way?  Instead of making a set of aspirational resolutions that have virtually no chance of being realized, view each day as an opportunity to be the you you want to be.  Each new day is an opportunity.  It’s not something that only happens once a year, on January 1st.  Each and every day presents us with the chance to, as the saying goes, “be the change you wish to see.”  In other words, bring the profound into the mundane (and what can be more mundane than getting up in the morning and heading to the office, again?).

So that’s my resolution.  No resolutions.  Just a willingness to see opportunities for growth and development all the time, throughout the year.  For me, that means (among other things) constantly being on the lookout for interesting and relevant topics, cases, and ideas to share with my readers.

Here’s to a successful 2014.



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