Proactive Employment Practices
According to the sports agent of Kyle Love, a former defensive tackle for the New England Patriots, Love was recently cut from the team. Why? Because he was diagnosed with Type 2 diabetes. Again according to his agent, Love is still fully capable of performing his duties (as are many other professional athletes with diabetes). Will Love complain to the EEOC or the Massachusetts Commission Against Discrimination (MCAD)? Time will tell. It certainly seems like a potentially viable claim to me.
The Association of Workplace Investigators (AWI) is the leading national organization dedicated to enhancing the quality of workplace investigations. I’ll be kicking off the Cleveland Circle tomorrow. The group will serve as a resource for professionals involved in workplace investigations. It’s going to be a lot of fun. Want to know more? Shoot me an email.
The mayor of East Orange, New Jersey is dealing with a sexual discrimination and harassment lawsuit by his former research assistant, with whom he had a lengthy affair. The timing of the litigation is unfortunate, as the mayor is in the midst of a tough reelection campaign. Even more unfortunate is the recent release of certain romantic gestures made by the mayor.
Notes he wrote his former paramour include the following:
“Good morning flower. Hope your day brings new hope, new meaning to those things so close to our hearts. Folks at Planning Board said hello.”
He later writes “Love is in the air. Breathe it in deeply for distribution throughout the body and soul. Enjoy the day. Be in by 10 or 10:15.”
And finally, ”If I were a fisherman I’d bait my line to hook you. You would be a prize catch, not as a trophy, but as someone for me to continue to love and adore.”
Sometimes you cannot make this *-#! up.
Lesson learned: save the poetry for outside the working relationship. Or be prepared to be seriously mocked.
[Hat tip and picture credit to Salon.com]
If you are like most HR professionals, you’ve got a running list in your head of things to worry about. I’m happy to detract from the list.
You may recall that last year the NLRB tried to institute a rule requiring all employers — whether unionized or not — to put up a large poster detailing employees’ rights to unionize and to engage in protected concerted activity under the NLRA. After much delay and back and forth between the courts, the D.C. Court of Appeal just issued a ruling nixing the poster requirement.
You’re welcome.
Many romances start at work. As I’ve blogged about before (see here), sometimes there is a happy ending, and other times not so much. In the latter category, problems for employers can abound. One developing area of interest is claims of sexual favoritism (aka paramour preferences). That is, someone is sleeping with the boss, and said someone gets lots of employment-related perks. Other, less unfortunate employees feel excluded, even harassed, by the paramour’s preferences. Can such favoritism give rise to legal claims?
A recent Second Circuit decision held that a paramour preference does not give rise to a claim under Title VII or the New York state anti-discrimination laws. In Kelly v. Shapiro & Associates, the facts seem particularly strange. The plaintiff was the HR Manager of her family business. She quit after complaining about the VP’s affair with another employee. The VP happened to be the plaintiff’s brother, so I’m assuming (at least hoping) that romantic jealousy was not at play here. According to the plaintiff the affair negatively impacted her work, as she lost duties and responsibilities to her brother’s lover. Not a Title VII issue, held the court. HOWEVER, this does NOT mean sexual favoritism gets the green light. Other courts have held differently. And even the Kelly court held that different facts could give rise to a sex discrimination claim, such as where the sexual favoritism is widespread enough to create a hostile working environment.
Sometimes, a case serves as a warning, even when its holding suggests a lack of liability. My advice to employers and HR is this: take complaints of sexual favoritism seriously. Don’t allow sexual favoritism in the workplace. Whether any such favoritism becomes widespread enough to constitute a hostile work environment, it’s bad, really bad, for morale.
EEOC Commissioner Victoria Lipnic spoke last week at a legal compliance symposium. She spelled out five ways you could find yourself playing the proverbial “knock knock” game with the EEOC.
1. The use of credit or criminal histories to screen new hires. The EEOC views these practices as potentially triggering disparate impact discrimination. If you use them, be sure to check with counsel. They can be ok, so long as they are consistent with the position in question and you use an individualized assessment as opposed to a blanket rule.
2. Automatic termination of employees when their medical leaves of absence expire. Remember to always consider whether you need to offer additional leave as an accommodation under the ADA.
3. Failing to accommodate pregnant employees. Under the ADA Amendments Act, temporary medical conditions like pregnancy may be able to qualify for protection.
4. Being unaware of the so-called “emerging issues” – transgender discrimination and family responsibility discrimination, to name a couple of relative newbies on the EEOC’s radar screen.
5. You have an “out with the old in with the new” (read young) attitude. Age discrimination is still a biggie for the EEOC.
It’s always a good idea to check yourself on compliance. The last thing you want is a surprise agency visit.
[Hat tip: Constangy, Brooks & Smith Employment and Labor Insider]
Employment terminations are the most common impetus for lawsuits. So before you pull the trigger, make sure your ducks are all lined up in a row. Especially since all employees can claim a protected status of one type of another (we all have a gender and race).
A recent Seventh Circuit case illustrates the point nicely. In Cloe v. City of Indianapolis the plaintiff project manager was terminated following her placement on a performance improvement plan (PIP). Ms. Cloe was, by all accounts, a stellar employee for many years. Shortly after being diagnosed with multiple sclerosis (“MS”), though, troubles began. Her mobility, concentration and memory were negatively impacted. Around the same time a new supervisor came on the scene who took issue with Ma. Cloe’s performance. The supervisor also expressed anger at Ms. Cloe needing to leave work for doctor’s appointments and made statements indicating she thought Ms. Cloe was exaggerating her symptoms. Shortly thereafter, Ms. Cloe was terminated.
In her (nearly inevitable) lawsuit, the appellate court held Ms. Cloe can proceed on her wrongful termination and retaliation claims. One of the problems the employer had was not getting its story straight on who made the decision to terminate Ms. Cloe, and why. The negative comments regarding Ms. Cloe’s medical condition certainly did not help its case (and I’m willing to bet the jury will not care for them much, either).
Takeaway: Be very careful to document the termination decision. Who made it, why, what are the supporting facts. Protected category potentially at play? Be sure it has not played a role. And also be sure the decision-maker(s) has not been spouting off inappropriately. How can you best accomplish this last nugget? Train your supervisors!
Summer will be here before we know it (even though we Ohioans saw snow yesterday) and for many businesses, that means summer interns. If you fall into this category you want to be very careful about wage and hour traps. (I’ve blogged about this issue in years past, here, here, and here). You know by now that it is highly unlikely that you can get away with an unpaid internship, right? Did you also know that even paid internships carry legal risks? For example, it is probably not enough to simply pay a “stipend” for internship work. More often than not, “intern” is just a dance word for “employee,” per the Department of Labor. That means all the usual rules apply: minimum wage, overtime, meal and break periods, and so on.
Hamilton College is learning this lesson the hard way. Late last year it was hit with a class action lawsuit filed by interns and assistant coaches in the athletic department who claim they were not paid minimum wage. Many worked long hours (90 plus/week), in the hopes of getting full-time jobs. If the plaintiffs prevail, the college could be looking at millions of dollars in wages, damages, interest and attorneys fees.
Do yourself a favor. If you are planning on using interns this summer, run your program by counsel.
No! This should be obvious to anyone with even a little familiarity with the wage and hour laws (FLSA). My niece mentioned over dinner recently that she had just been hired at a local restaurant. She worked all weekend to get “trained,” but does not start earning wages until her first post-training shift. Small business owners, please take note and don’t make this mistake. The employer’s practice here is illegal, plain and simple.
doesn’t mean you can’t be sued. Bullying behavior in the workplace can implicate all kinds of employment laws. So says Allison West of Employment Practices Specialists LLC, who spoke about bullying at the SHRM Employment Law and legislative Conference in D.C. (full disclosure: aside from being an amazing speaker, trainer, investigator and consultant on all things HR and employment law, Allison is a dear friend and colleague). With just a little bit of imagination, it’s easy to see how.
Say a manager is engaging in bullying behavior towards a subordinate. The manager pushes the employee, locks her in the conference room, and spreads nasty rumors about her. Already, the employer could be looking at claims for assault and battery (or even an OSHA violation), false imprisonment, and defamation. As a result, the employee suffers migraines, depression, and an ulcer. Now the employer is facing FMLA, ADA and possibly workers compensation issues. As the story progresses, additional laws become implicated.
Don’t take solace in the fact that there are no anti-bullying laws per se (be aware this may change, in any event). Don’t allow bullying behavior in your workplace. Create and cultivate an environment where respectful behaviors are rewarded, and bullying is simply not an option.
No doubt Boston is on our minds this week. What could it have to do with HR? Apart from serving as a reminder to think about emergency preparedness (see Jon Hyman’s post earlier this week for a great guide), Monday’s tragedy can remind us that we are in the “people business.” Our employees most likely come to work from time to time while dealing with life crises. Employers and HR should think about (and even train managers on) how to deal.
I presented a training session earlier today on respect in the workplace. One of the participants shared an example of a time she felt very disrespected at work: she had been in a car accident the night before and came into work the next morning, albeit it a little late, all shaken up. Instead of offering a proverbial pat on the back, her manager yelled at her for being late. No “glad you’re ok,” “that must have been scary,” or “what can I do to help.” This was a missed opportunity for the manager to show some good old fashioned empathy, which can go a long way towards building a trusting, productive working relationship.
So what role can HR play? First, make sure managers know to come to you, or to send the employee to you, in such an event. Next, be compassionate and express empathy. Then, see if there is anything you can do to help. Maybe an employee needs half a day off, or more. Try to be flexible. (Warning: you don’t want managers making individualized decisions on this front, without your input or say so; make sure they know this.) Also consider organizational action – donating to a charity, asking employees to donate blood, etc. The actions you suggest will depend on the circumstances, of course. Finally, make sure you’re thinking about all the laws that might be applicable (i.e., FMLA).
Here’s the thing about retaliation claims: they are relatively easy to get to a jury. And once that happens, well, examples abound of juries sending punitive messages to employers about how they feel about retaliation (recall the $44 million verdict for a single plaintiff levied by a Cuyahoga county jury a few years back). It is right around when an employee complains about harassment or discrimination that retaliation claims are ripest. And it does not matter whether the underlying claim – the one that triggered the retaliation – has merit or not.
Westendorf v. West Coast Contractors was decided earlier this month. Ms. Westendorf made an internal complaint of harassment (in essence, male employees made sexually demeaning comments to her over a three month period). Shortly thereafter, the company president (who she had complained to) confronted her with an alleged performance issue, told her she obviously could not get along with her supervisor (one of the alleged harassers), and suggested it would be best if she left the company.
One lawsuit and a lot of money later, the appellate court upheld the dismissal of the harassment claim, finding the evidence was insufficient to show a hostile work environment. The retaliation claim, now that’s another story. The evidence was sufficient to let a jury decide if Ms. Westendorf was fired for complaining about retaliation. And we all know how risky letting a jury decide can be.
A Dallas-based law firm recently learned how to incur a sex discrimination claim. According to the complaint filed by a female partner, the firm had a policy that banned male and female employees from working alone together. This policy served to exclude women and hinder their opportunities for advancement. Allegedly, the policy was instituted as a preventative measure to avoid claims of sex harassment. The plaintiff’s attorney pointed out the illogic of this thinking in comparing it to a concern over race-based harassment. ”You wouldn’t do that to African American employees. ’We’re afraid someone will accuse us of racial harassment, so white employees can’t be alone with African American employees.’” Obviously, such a policy would not pass even the laxest Title VII smell test.
While the employer stated it intends to fight the lawsuit, it seems like a pretty good discrimination claim to me, assuming the evidence bears out the allegations.
Many employees worry that there is not enough time in the workday to get their work done. Unfortunately, this is a reality for far too many. To compensate, some take it upon themselves (or are encouraged by their employers) to come in a little early, stay a little late, but “off the clock.” This is very dangerous ground for employers to tread upon, or to let their employees tread upon. Many a FLSA lawsuit has been filed as a result of such off the clock work.
So what should you do if you have employees scrambling before and after hours to get work done? Put an end to it, and fast. First, make sure all managers know they cannot encourage or turn a blind eye to this practice. Second, implement a policy providing that all overtime must be authorized in advance, and enforce it. If that means disciplining employees for working off the clock, then do it. But you still have to pay them for all the time they actually worked (and use it all to calculate any overtime wages).
Yes it can, held the Fifth Circuit in a case decided last week, Etoh v. Fannie May. A Fannie Mae Vice President allegedly used the “n” word, telling the plaintiff to get out of his office. Reversing summary judgment, the court of appeals held that a single use of the “n” word was enough to get the case before a jury. There were more facts persuading the court that the plaintiff’s racial harassment case should have its day in court, but its holding that a single use of the “n” word by a supervisor was enough is significant.
Some things are simply off limits. It’s obvious this is one of them.
Last week I blogged about a case where a company that bought another’s assets was held liable for a $500,000 FLSA settlement, despite a contract between the two companies disavowing this liability for the purchaser. (See it here). A colleague wrote to point out this issue of successor liability (i.e., a buying company being held legally responsible for acts of a selling company) is a huge problem in the area of worker’s compensation. His insights were so important I thought you all should know about this.
As long as the sale meets certain criteria (e.g., same business, same location, same employees), the Bureau of Worker’s Compensation (“BWC”) will impose any outstanding liability of the seller onto the buyer. Also, the buyer will inherit the seller’s experience rating (which can be awful!). The BWC, like the DOL, will not consider itself bound by any contractual agreement between the seller and buyer.
So pulease, do yourself a huge favor and add workers’ compensation to your due diligence list if you are considering buying another company!
(Thanks to Steve Dlott at Meyers, Roman, Friedberg & Lewis for the tip!)
Are you in the business of purchasing assets of other entities? If so, this is a case to pay attention to.
The Seventh Circuit recently decided Teed v. Thomas Betts Power Solutions, involving a company that bought the assets of another company. The predecessor company owed its employees $500,000 for wage and hour violations (per a settlement agreement). The acquiring company knew of the liability and took care to specifically state that it was not assuming this liability in its purchase of the predecessor’s assets. Thus, the contract, signed by both companies,made it clear that the acquiring company would not assume the $500,000 debt. Should have been a non-issue then, right? Not according to the Seventh Circuit. The court held the contract was not enough to avoid liability for the FLSA violations that predated the acquisition. Why? The employees, of course. While both companies agreed to the disclaimer, the employees were left out in the cold, with no one to pay them their owed monies.
I was just in Savannah visiting family for a few days. If you look at the above picture closely, you’ll see that’s an alligator on the bank of the river. We saw it, and lots more, at the Savannah Wildlife Refuge. My sister-in-law told us that when she first moved to Savannah and went to the Refuge for the first time, she spotted an alligator from the car, in the river below. My brother-in-law stopped the car and they rolled down the windows to take a closer look. There was a car behind them, and my sister-in-law pointed out the window at the alligator, to indicate what they were looking at. Suddenly, with no warning at all, the alligator lept from its prone position in the water and nearly bit off my sister-in-law’s hand. (Fortunately, it missed.)
What does this story have to do with training, or anything HR, you wonder? My sister-in-law had no idea alligators could jump like that, especially one who looked like it was lazily lounging. If someone had told her, she never would have stuck her hand out the window and suffered weeks of terrifying flashbacks. Now she knows, and trust me she won’t make that mistake again.
Your managers are like this with issues such as harassment, reasonable accommodations, and a whole host of other legal do’s and don’ts. Train them, and they can stay out of trouble. Don’t, and assume the risk of all that they don’t know.
An Ohio Appellate court just dismissed a claim for harassment based on an employee’s sexual orientation. The court in Inskeep v. Western Reserve Transit Auth. held Ohio does not recognize sexual orientation as a “protected category.” True enough. But many states and even Ohio municipalities (e.g. Cleveland) already prohibit discrimination based on sexual orientation, and the societal tide is undoubtedly turning. The United States Supreme Court heard two cases this week about the legal rights of gays and lesbians. It is only a matter of time before sexual orientation makes its way into the federal anti-discrimination statutes.
Instead of taking a reactive “we’ll deal with this when we have to” approach, employers would be wise to stay ahead of the curve. Amend your policies to include sexual orientation as a protected category and include it in your training sessions. Why? Your employees will appreciate that you are an equal opportunity employer. And why would you tolerate discrimination or harassment based on sexual orientation even if it is, for now, technically legal? It’s bad for morale, productivity, employee engagement, and on and on.
When an employee complains about harassment, discrimination, or another workplace policy violation, one of the most important decisions you need to make is WHO will investigate the complaint. This initial question can make all the difference if the investigation is later subject to scrutiny, in a court or otherwise. So how should you make this selection? Here are my top four DON’Ts:
1. Don’t choose someone who has a working or personal relationship with the complainant or the accused wrongdoer.
2. Don’t choose someone with no experience or training in workplace investigations. This is a specialized area requiring a high level of skill.
3. Don’t choose someone who lacks communication skills, both verbal and written. Your investigator should be able to converse effectively with the parties, witnesses, and perhaps even to serve as a witness him or herself
4. Don’t choose someone the parties won’t trust. It is critical that the investigator is viewed as a “neutral.”
Action step: make a checklist for yourself so that when the time comes to select an investigator, you are ready to go. Remember, time is of the essence when it comes to responding to employee complaints!
In keeping with the theme of yesterday’s blog (Just because it’s legal . . .), it’s smart for HR and employers to distinguish between what is technically legal and what is a best practice, in terms of employee relations and HR. Thus, when I conduct harassment training I try to paint a picture of the legal landscape, but color it in with a more detailed picture of what is, and what is not, acceptable workplace behavior. One issue that comes up from time to time is interoffice dating. Lots of relationships begin at the workplace, to varying degrees of success. I advise a two-pronged approach:
1. Don’t date anyone whom you supervise, or who supervises you (and if you find yourself in that situation, alert HR and do something about it – it’s a situation ripe for harassment and favoritism claims);
2. If you must ask a co-worker out, ask only once. Don’t assume people you work with are playing “hard to get.” At some point, an ask can turn into an unwanted sexual advance.
I temper both of these suggestions with advice to always do what makes the most sense for your particular organization – this is not a “one size fits all” area.
I recently read about an Eighth Circuit case that held a supervisor asking an employee out 30-40 times (!) did not constitute harassment. The case is Butler v. Crittenden County, and I wholeheartedly disagree with its findings. First, the fact that a supervisor asked out a subordinate is a red flag. And even getting past that, 30 or 40 times? I mean c’mon, why did this individual think it was ok to keep pursuing? The point is, courts can be hard to predict (and juries even more so). Why take a chance? And even more importantly, why would you tolerate an environment where an employee is subjected to unwanted advances day in and day out?
Takeways: Set up clear rules about issues such as interoffice dating. (These do not need to be written – it could be the simple approach I recommended above, communicated during your yearly (or every other) harassment training). And think BEST PRACTICES, not what can I get away with legally?
doesn’t mean it’s smart. Consider the case of Tracy Lewis, recently fired from her thirty year job in food services at American University. What prompted the firing? Ms. Lewis selling her daughter’s girl scout cookies at work. Really.
According to her employer, she violated the “no solicitation” policy. It didn’t matter that she had been selling the cookies for three straight years. It didn’t matter that she received no warning. Thirty years, then one day gone.
Were the employer’s actions legal? Probably yes. There is no statutory right to sell your kids’ wares at work. But was the decision fair? No way. And if Ms. Lewis can find a creative way to present her case to a jury, I’d bet on her. Juries really dislike unfairness. Even if Ms. Lewis cannot get to court, the employer has certainly inflicted some wounds on employee morale.
Dale Carnegie Training recently released the results of a new study on employee engagement. The findings might surprise you. Even if employees are passionate about what they do, they won’t be engaged in their workplace unless they trust senior management and feel a bond with their immediate supervisor. If either of those two factors are lacking, employees feel extreme dissatisfaction and low engagement.
Why is this study relevant for you? A couple of reasons. It really is imperative that management “walk the walk.” In other words, have a clear set of organizational values and communicate them to all levels of employees. Ask for feedback from employees, and do something with it. Second, and this is where HR can have the most impact, who your supervisors are matters, big time! Many rise through the ranks because they are good at what they do, not because they necessarily have what it takes to manage. That’s all right, so long as they get the proper training.
What does proper training look like? It will vary from organization to organization, but it must include topics like respect, harassment, discrimination, and communication skills.
When an employer receives an internal complaint of discrimination or harassment, it has a legal duty to investigate. Sometimes, the employer needs to take action pre-investigation, to keep the complaining party safe (aka interim action). Consider the case of Al-Birekdar v. Chrysler Group, decided by the Eighth Circuit earlier this month. The plaintiff complained about religious and racial harassment. What did the employer do? Place him on an indefinite leave of absence.
Are you scratching your head? I hope so! This is a clear “Don’t” in the world of workplace investigations. The decision to separate the parties was a good one. Why keep an alleged harasser and an alleged harass working together? However, this decision should never be implemented to the complainant’s detriment.
What should the employer have done? One obvious option would have been to place the alleged wrongdoer on a paid leave of absence pending the investigation. Why paid, you ask? Because the alleged wrongdoer has rights too, and you don’t yet know if he or she violated any of your policies. So hedge your bets, think paid leave, and make sure the complaining party is not out a dime.
Not surprisingly, the court upheld the jury’s almost $200,000 retaliation verdict.
Many of us spend much of our lives focused on our weaknesses. The areas where we are lacking, so that we can improve ourselves, our performance, our success. I’m reading a book that turns this traditional paradigm of on its head. Now, Discover Your Strengths by Marcus Buckingham and Donald Clifton posits, based on a Gallup study of over two million people, that when we focus on weaknesses (of ourselves, our colleagues, the people we manage), we miss a huge opportunity to leverage natural talent and ability. The most successful managers, they argue, develop the ability to know where their people thrive and to develop them from there – not from where they are weakest. This applies to how we manage our own lives — professional and otherwise — as well. It’s a fantastic, quick read and includes an online test for the reader to uncover his or her top strengths. I’m off to take it – consider delving into it yourself!
We should be connected!!!
