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NLRB’s quickie election rule struck down

By Sindy Warren on May 15, 2012 in Our Blog

Recently, the NLRB’s employee rights posting rule was struck down. But the “quickie election” rule, which drastically sped up the union campaign and election process, remained. Until now. The D.C. District Court struck down the rule last week because there was no quorum present for the final vote. In Chamber of Commerce v. NLRB, the court quipped: ”According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

So the quickie election rule is dormant for now. Stay tuned to find out if it is resurrected.

Politics and religion in the workplace: a primer

By Sindy Warren on May 14, 2012 in Our Blog

My west coast colleague, Allison West, Esq. SPHR, will be tackling this issue in a webinar on June 19, 2012. In a nutshell, she’ll be covering:

Religious and political discussions can be difficult to avoid in the workplace, especially in a presidential election year. And because such discussions can invoke strong reactions, employers struggle with how much to allow — or rein in — without violating employees’ rights. So, what can an employer do to avoid legal landmines?

Timely, right? If you are interested, here is the link to sign up.

To really drive home the importance of knowing the potential pitfalls when it comes to religion at work, earlier this month a jury awarded $5 million to a single plaintiff. Susan Bashir worked for a division of AT&T. When she started working, she was Christian. A few years later she converted to Muslim. Her work environment was not hospitable, to say the least. Managers and coworkers called her a terrorist and other pejorative names. They made fun of her hijab and her manager even tried to pull it off her head. She complained, but to no avail and she was eventually fired (retaliation anyone?).

The jury was quick to rule in her favor. Actual damages were $120,00. But the punitives? An additional $5 million. [Hat tip Allison West]

If you read this blog you probably know what I am about to say. Train your employees, especially managers!

President Obama supports same sex marriage; what does this mean for HR?

By Sindy Warren on May 10, 2012 in Our Blog

Yesterday President Obama declared his support for same sex marriage. (Kudos Mr. President). His statement came on the heels of Vice President Joe Biden taking the same stance on Meet the Press over the weekend. While these statements will certainly have political ramifications, what do they have to do with HR? If nothing else, they demonstrate a shift in cultural norms. To have a sitting President articulate his support of gay rights in such a clear way is, in some ways, groundbreaking. The law is sure to follow, whether in the very near future or at some later date. But I do think change is inevitable.

This matters for recruitment and retention of employees. Younger employees overwhelmingly support marriage equality and gay rights. Even if your state does not legally mandate a prohibition against sexual-orientation based discrimination, why not embrace the cultural shift along with the President? Your policies and trainings should reflect your stance on this issue.

Respect and The Law

By Sindy Warren on May 8, 2012 in Our Blog

I’m currently at the ASTD (American Society for Training and Development) conference in Denver with Legacy Business Cultures, whose Managing Partner Paul Meshanko just published The Respect Effect, a comprehensive look at how and why creating a culture of respect in your workplace enhances the bottom line. Respect in the Workplace is a core value of many a Fortune 500 company, and it doesn’t happen without targeted training. There is a legal component to consider too: does rolling out a Respect initiative cover all your legal bases? Not necessarily.

Consider the following scenario. A long term employee has a solid and trusting relationship with her supervisor. She asks her supervisor — who has dedicated much time and energy to developing the employee and their working relationship — to maintain confidentiality when she reports an incident of harassment. What is the respectful thing for the supervisor to do? Maintain the confidence. But is that legal? Absolutely not. The law imposes an absolute duty on said supervisor to report the potential harassment so the employer can do something about it. Even against the employee’s wishes.

My takeaway: Embrace respect as a cultural initiative. But make sure to train your supervisors on the legal landscape and their obligations under it too.

The unemployed: a new protected category?

By Sindy Warren on May 3, 2012 in Our Blog

The District of Columbia just enacted the first law prohibiting discrimination based on being unemployed. Beginning this month, D.C. employers cannot consider an applicant’s unemployed status in making hiring decisions. The EEOC held hearings last year addressing this issue; i.e., how to protect the growing number of unemployed individuals from experiencing discrimination. If you have operations in D.C., make sure your applications do not say anything to the effect that the unemployed need not apply. So too in New Jersey and Oregon, who have prohibited such advertisements. Will this new category garner more attention? Stay tuned.

Exceptions to a grooming policy: a classic accommodation of a religious belief

By Sindy Warren on May 1, 2012 in Our Blog

Religion is the only protected category under Title VII that requires employers to make reasonable accommodations. (We typically think of reasonable accommodations in the context of the ADA). The EEOC just tagged an employer for a common but easy-to-avoid misstep.

A Taco Bell franchise in North Carolina recently threatened to fire an employee who refused to cut his hair, in contravention of the restaurant’s policy. The employee was a self-avowed “Nazirite” who, following his belief system, had not cut his hair in years. What should the employer have done? Considered making an exception to the grooming policy as an accommodation. If there were health or safety issues (e.g., the employee dealt directly with food and his hair was in the way), the employer could have insisted on a hairnet or some such thing, in lieu of a hair cut. The point is, the employer should have spotted the issue.

Never heard of an employee’s claimed faith? Most likely this will not make a difference to your obligation. Title VII’s mandate is incredibly broad. Do yourself a favor and train managers to at least be able to spot these issues. That way, HR and/or legal counsel can get involved before the EEOC does.

Auditing your I-9s: well worth the effort

By Sindy Warren on April 30, 2012 in Our Blog

There are some employment law mistakes employers — by no fault of their own — find it impossible to avoid. Complete FLSA compliance is one example, as Jon Hyman points out over at the Ohio Employer’s Law Blog. I-9 compliance seems to be another. I’ve just completed an I-9 audit for a client. Whew did I catch a lot of mistakes! They’re little (employee signed in the wrong place, employer forgot to date, copy of renewed visa stapled to I-9 but form still lists expired date) and easy to fix. But if ICE comes knocking before you catch them, you’re looking at a big chunk of change. Why take that chance?

Discrimination against transgendered = sex discrimination, per the EEOC

By Sindy Warren on April 26, 2012 in Our Blog

Title VII does not include sexual orientation or identity in its list of protected categories (though many states and cities do). However, courts are often pretty creative in finding ways to include such cases under the umbrella of sex discrimination. A gay male who is treated in a discriminatory manner could have a claim for sex discrimination based on his failure to conform to gender stereotypes, for example. In my trainings, I always counsel managers to think about gender discrimination in the broadest possible terms. The EEOC issued a ruling this week explicitly holding that a transgendered individual who is discriminated against has a valid claim for sex discrimination under Title VII. Employers should expect courts to follow suit.

If you don’t already have a policy in place that prohibits discrimination based on sexual orientation and gender identity, think about adding one. It’s always better to be one step ahead of the courts, as opposed to one step behind.

New Sixth Circuit cases makes it harder to defend a workplace investigation

By Sindy Warren on April 18, 2012 in Our Blog

In McDole v. City of Saginaw the Sixth Circuit upheld a million dollar jury verdict in favor of an employee who sued after he was fired. Former police officer McDole was terminated following a workplace investigation, which concluded he physically assaulted and threatened a suspect. McDole’s lawsuit alleged he was terminated based on his race. The trial court refused to instruct the jury on the “honest belief” rule, namely that if an employer honestly and in good faith believes the employee engaged in misconduct, it will not later be liable to the employee if its belief turns out to be wrong. This is a very important doctrine in the world of workplace investigations. It basically gives employers a get-out-of-jail-free card if they conduct an investigation properly and thoroughly but nonetheless reach the wrong conclusion. The City appealed the jury verdict on the grounds that the failure to instruct on this was prejudicial error. The Sixth Circuit denied the appeal and upheld the verdict. It concluded the jury’s decision finding discrimination basically rejected the notion that the City honestly believed its reason for termination.

What does this mean for employers? Workplace investigations just got a little trickier to navigate. The Sixth Circuit effectively weakened the “honest belief” rule, making it more important than ever that workplace investigations be done expertly. Consider bringing in an outside investigator with expertise in the area, or training those employees who conduct workplace investigations.

NLRB Posting Requirement Postponed Yet Again

By Sindy Warren on April 17, 2012 in Our Blog

Breaking news: don’t hang those NLRB Employee Rights posters just yet. A federal court in D.C. just barred the NLRB from implementing the poster rule on April 30 pending a current appeal. Stay tuned as the dance between the NLRB and employer groups continues. It’s not yet clear who will take the lead.

Employee Handbooks: do’s and dont’s

By Sindy Warren on April 17, 2012 in Our Blog

I’ve found myself reviewing a number of employee handbooks for employers lately. Some are great, and others not so much. When it comes to creating or revising a handbook, keep these few basic tips in mind:

DO emphasize, right from the get-go, that employment is at-will and nothing in the handbook changes that.
DO make sure you’ve got the latest legalese. Employment laws change a lot, and new policies have to be crafted to keep up. For example, does your anti-discrimination policy contain list “genetic information” as a protected characteristic? It should, thanks to GINA. Is your social media policy in keeping with the latest NLRB rulings?
DO provide yourself with the utmost leeway to deal with employment situations that arise. Avoid rigid, step-by-step disciplinary policies that could diminish your latitude.
DON’T make promises you can’t or won’t keep. For example, don’t say performance reviews are conducted twice a year if they are really not.
DON’T forget to include a detailed and specific complaint procedure when it comes to issues of harassment and/or discrimination. The courts insist.

As a general rule, handbooks should be reviewed annually to make sure they are up to legal snuff.

The clock is ticking: NLRB changes quickly approaching

By Sindy Warren on April 11, 2012 in Our Blog

As I’ve mentioned before, on April 30, 2012 the NLRB rule requiring employers to post a new Employee Rights poster goes into effect. You can get the poster here. The posting requirement applies to virtually every employer, regardless of whether they are unionized. Also happening on April 30 is the implementation of a new Board rule concerning quicker union elections. The rule is a remnant of the proposed but never implemented EFCA (Employee Free Choice Act) that got loads of media attention a couple of years ago. The impact of this new rule could be huge. It will shorten the amount of time between a union petition and the vote. Currently, there are an average of 38 days in between a petition and the actual vote. This gives employers several weeks to prepare and implement a strategy to deal with the possibility of becoming unionized. This is about to change to a likely 10-21 day window between a petition and a vote. That’s not a lot of time considering it takes most employers 1 to 2 weeks to even fully digest the fact that they are facing the real possibility of unionization.

If you’ve not started thinking about these changes, now is a good time. Get ready to post and do some management-level training on how to deal with the possible uptick in union activity.

Can you discipline or fire an employee based on an arrest?

By Sindy Warren on April 5, 2012 in Our Blog

It depends. There are a few potential pitfalls you need to consider before you do. As you go through this analysis, keep in mind that an arrest is not a conviction.

The first hurdle is avoiding defamation claims. Say an employee is arrested for theft and you discipline or terminate him for “theft.” He is then cleared of the charges. Now you could be looking at a defamation claim. If you discipline him for “an arrest for theft,” that’s truthful and thus a defense to a defamation claim.

The next danger is inviting a disparate impact claim. Certain minority groups have statistically higher rates of arrest than others. The EEOC has taken the position that disqualifying applicants based on arrest records, as opposed to convictions, can constitute disparate impact discrimination. Look at the facts of your case. Was the employee’s arrest related to her job? (Think an accountant arrested for forgery). If so, it will be easier to defend the decision to discipline or terminate.

You also want to consider the effect on the culture of the workplace. Terminating an employee who was arrested for a relatively minor crime could have a negative impact on morale. Not taking any action against an employee arrested of a violent offense such as rape or murder, though, could have the same negative effect. Bottom line: check with counsel before taking action.

One more point: In most cases an employee who was terminated based on an arrest will still be entitled to unemployment compensation.

A common sense decision: you can fire an employee for making a false claim of harassment. But . . .

By Sindy Warren on April 3, 2012 in Our Blog

In Joaquin v. City of Los Angeles, a California court of appeals upheld the termination of an employee for making a false harassment claim. Joaquin, a police officer, believed he had been propositioned by his supervisor. The supervisor allegedly made comments such as “we should go out some time” and “you have nice arms.” A short while later Joaquin realized he was on the verge of being disciplined for leaving his shift early. He complained the impending discipline was retaliation for his rejection of his supervisor’s advances. Internal Affairs investigated the complaint and concluded it was unfounded. Thereafter, the supervisor filed an official misconduct complaint against Joaquin, claiming he intentionally made a false complaint. Internal Affairs agreed and Joaquin was terminated.

In the subsequent lawsuit for retaliation, the court framed the question as follows: “the relevant legal question is whether an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated.” The common sense answer prevailed: an employer can take disciplinary action if it determines an employee made a false complaint of harassment.

As with most things in the world of employment law, there is a big “but.” Don’t conclude an employee made a false complaint haphazardly. Expect that determination to be subject to a judicial microscope, so make sure it is rock solid. An erroneous complaint, in contrast to an intentionally false one, does not warrant a termination.

So what can you say to employees about unions?

By Sindy Warren on March 28, 2012 in Our Blog

With the NLRB poster deadline quickly approaching, it’s a great time to reacquaint yourself with the rules about what employers and managers can say to employees when it comes to the possibility of a union. An employer may lawfully urge employees to vote against a union and can express its opinions and beliefs as to why unionization would be bad for employees. An employer may not, however, threaten, interrogate, make promises, conduct surveillance of or otherwise coerce employees with respect to unionization. How do you distinguish between what is permissible and what could constitute an unfair labor practice? Check with counsel. Or have an expert train your managers on the do’s and don’ts. They can be tricky.

An example of a permissible communication: “I understand some of you are considering supporting a union and I think it’s a big mistake. My father spent his whole life in a union and he never got anything good out of it. Instead, he spent his career paying union dues.”

An example of an impermissible communication: “I understand some of you are considering supporting a union. It’s your choice, but if a union comes in I don’t know if we’ll even be able to stay in business. We might have to move our production to Mexico.”

What’s the difference? The first statement reflects on opinion based on personal experience. The second contains an implied threat of a shutdown.

NLRB poster date quickly approaching

By Sindy Warren on March 27, 2012 in Our Blog

Employers have to post the NLRB poster (click here to download it) informing employees of their rights under the National Labor Relations Act by April 30, 2012. The posting date has been delayed a couple of times already, but it looks like the April 30 date will stick (if not, I’ll let you know). There has been much agita over the poster requirement, but my advice is not to make too much of a big deal out of it. Yes, you need to put it up in a conspicuous place. Yes, it needs to be in every language spoken by 20% of your workforce. And yes, managers should be trained on what they can and cannot say to employees about unions. But at the end of the day, as this youtube video points out, it’s just a poster.

Don’t forget about customer harassment

By Sindy Warren on March 22, 2012 in Our Blog

When I conduct harassment training I ask supervisors who they think can commit harassment. The correct answer is . . . just about anyone. Subordinates, superiors, peers, you name it. Also on the list is customers, clients, vendors and other individuals whose behavior is not necessarily in the employer’s control. So what’s an employer to do if it catches wind that an employee is being harassed by a non-employee? Take action! Whatever steps it can take to end the harassment, even if it means losing a customer (though sometimes just a firm warning will do the trick).

To this point, the EEOC just settled a harassment suit against the owner of a restaurant chain. Management apparently knew that a repeat male customer was frequently harassing its servers. He made comments about their bodies, showed them pornographic images on his phone, propositioned them and even touched them. Even though the servers complained, management did not try to stop the customer. The result? A several hundred thousand dollar settlement with the EEOC and a promise to provide yearly anti-harassment training and report all complaints to the agency for three years.

Instead of waiting for the EEOC to do your harassment prevention work for you, make sure you train managers on how to handle situations such as this one. A documented talking to the customer would have been a good place to start.

Virginia Tech verdict a warning for employers

By Sindy Warren on March 21, 2012 in Our Blog

Last week a jury found Virginia Tech negligent in the shooting deaths of two of the victims of the 2007 massacre that left 33 dead. Police and administrators failed to act quickly enough in warning the campus after the shooter fired his first shots in a dorm, about two and a half hours before the victims were killed, according to the jurors. This verdict presents a clear “to-do” for employers. Have an emergency plan in place in the event of a violent event in the workplace. There should be a clear understanding of who will be responsible for what. That way, in the event of the unthinkable, employers will be prepared to respond as effectively and quickly as possible.

FMLA protections can apply to even to non-eligible employees

By Sindy Warren on March 20, 2012 in Our Blog

Earlier this year the Eleventh Circuit held that an employee who was not yet eligible for FMLA leave could still be protected by the law. The plaintiff in Pereda v. Brookdale Senior Living Communities, Inc. told her employer she would need leave following the birth of her child. She was not yet eligible for the leave (nor did she need it, as she had not yet given birth). Almost immediately, the employer began a campaign of harassment that culminated in the plaintiff’s termination. When she sued, the lower court held she could not invoke the protections of the FMLA, as she was not technically covered by the law at the time of harassment and termination. Not so fast, according to the Eleventh Circuit, which held a pre-eligibility request for a post-eligibility leave was protected activity.

So what’s the lesson for employers? Pay attention to the spirit and not just the letter of the law. Thinking you can squeak by an FMLA claim based on a technical reading of the law is the kind of thinking that usually lands you in court. And let’s not forget about the cost on morale and employee relations.

Behavior-based interviewing: assessing absenteeism

By Sindy Warren on March 12, 2012 in Our Blog

No doubt about it – absenteeism takes a huge toll on the bottom line. One of the best ways to combat it is proactively, during the hiring process. Absenteeism is generally a habitual problem for employees. By using behavior-based questions to assess a candidate’s past behavior, you can get a pretty good sense of what to expect if he or she comes to work in your organization. Some examples:

Tell me about a time when you showed up at work despite obstacles in your path;
Tell me about a time you skipped out of work because you didn’t want to be there that day;
Tell me about a time you were ultra-reliable;
Tell me about a time you didn’t come through for someone who was counting on you.

The possibilities are many, but you get the idea. Use the interviewing process to assess candidates’ attitudes towards absenteeism – and train hiring managers to do the same. It could save you a lot down the line.

When it comes to disabilities, don’t make assumptions

By Sindy Warren on March 8, 2012 in Our Blog

Starbucks was recently reminded of this critical rule when it failed to even consider an accommodation for a job applicant. The applicant wanted a barista job (the latte-makers behind the counter). She had dwarfism and was thus very short. She suggested she could do the job using a stool. The interviewing manager, however, did not take her seriously and moved on to the next applicant. When the EEOC got involved Starbucks claimed the applicant would pose a danger to customers and employees. The EEOC proceeded to file an ADA lawsuit. Starbucks, apparently seeing the error of its ways, quickly settled the suit and agreed to provide training on ADA procedures.

Assumptions about people’s disabilities will always get you into legal trouble. Not to mention, they are just that – assumptions. For all Starbucks knew, the applicant could have been the best cappuccino-creator it ever met. One more point: supervisory employees typically do not know all the intricacies of the ADA. Don’t expect them to. Instead, educate them.

“Harassment” claims – why is this term so misused?

By Sindy Warren on March 5, 2012 in Our Blog

I’m frequently asked to investigate employee complaints of harassment. Once the investigation is underway I sometimes find the alleged “harassment” is nothing more than a “this-isn’t-fair” type of concern that is unrelated to anyone’s protected categories (race, gender, religion, etc). So what is an investigator to do? Don’t throw in the towel and assume there is no work to be done. Go ahead and interview witnesses, review documents, and make factual findings. Assuming there is no true harassment lurking beneath the surface, the conclusion will always be that the allegations of harassment are unsubstantiated. (Still, there may be plenty of workplace dynamics to explore, perhaps pertaining to respect in the workplace or adherence to company policy.)

This kind of scenario presents a conundrum of sorts for employers. Ignore the leveling of “harassment” claims at your own risk. But when the term is simply misused, count on spending time and resources on a perhaps unnecessary investigation. What is a proactive way to avoid this situation? Make sure your policy spells out what, exactly, harassment is. And what it is not. And when you train your workforce on your policy, be sure the trainer invests a significant amount of time in explaining what harassment is not.

Tragedy in Chardon: a lesson for HR

By Sindy Warren on February 29, 2012 in Our Blog

You’ve no doubt heard the tragic news emanating from Chardon, Ohio this week. A student came to school in the morning, took out a gun in the cafeteria, and started shooting. Five kids were shot, and three of the five have died. It’s a horrific tragedy that’s making national news. Jon Hyman over at the Ohio Employers Law Blog had a nice takeaway for employers yesterday: maintaining humanity in human resources. Another one strikes me as well. Many of the students who were at Chardon High School Monday morning knew what to do. They hid in classrooms, ran out of harm’s way, and proceeded in a fairly orderly way to ensure their safety. You see, they had practiced “lock down” drills many times before. The school had a plan in place, communicated it repeatedly and trained on it. So when tragedy struck, students and teachers were as prepared as anyone could be under the circumstances. While it is certainly a sad state of affairs that schools need to engage in such drills, it is undoubtedly important.

HR should take note and make sure their organization has such emergency planning in place. Publicize it, practice it, repeat.

HR’s role in dealing with LGBT issues

By Sindy Warren on February 27, 2012 in Our Blog

Last week I attended a presentation on the business case for LGBT inclusion. LGBT (sometimes called GLBT) is shorthand for the gay community — specifically, lesbian, gay, bisexual, transgender. It’s a significant part of the workforce. While federal law does not (yet) protect sexual orientation, several states and even localities, including the city of Cleveland, do. Courts often de facto protect employees from discrimination based on sexual orientation under the rubric of sex discrimination (i.e., the failure to conform to gender-based stereotypes). But aside from the legal status of the LGBT community, there are compelling reasons for employers to take proactive steps to be inclusive.

Increased productivity is one reason to send the message that you welcome diversity in the workplace. When employees feel they have to hide who they are at work, the productivity drain is enormous. Think of all the energy going into the daily machinations that a gay employee will go through in trying to obscure the fact of his or her sexual orientation. Try having a conversation about your weekend where you do not refer to the gender of the person you spent it with. It’s taxing! Another part of the “business case” is team productivity. A recent California study found that when members of a team came “out,” the team was between 27%-35% more productive. Increased employee engagement is yet another reason to strive for inclusion. When employees feel free to be their authentic selves, they are more likely to forge bonds with co-workers and be truly engaged at work. And, by sending a clear message that your organization cares about diversity and inclusion, you are likely to obtain business from the LGBT community. It’s a growing segment with real market power, and they actively look to see which employers support their mission (simply to be free of workplace discrimination) and send their business there.

So what does being “inclusive” look like? For starters, make sure sexual orientation and gender identity are covered in your anti-discrimination and harassment policies. Train all employees on respect in the workplace, with a focus on debunking stereotypes. Take steps to make sure your commitment to diversity is clear to prospective employees and customers/clients. Plexus, the Chamber of Commerce for the LGBT community, is a great resource for employers wanting to know more.

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