Tag Archives: anti-harassment

The #MeToo Effect on Your Company

Contributed by Beverly Alfon and Allison Sues, November 13, 2018

#MeToo

#MeToo on white paper

As we draw closer to the end of 2018, let’s reflect a bit and look forward with purpose.  The U.S. Equal Employment Opportunity Commission (EEOC) recently released preliminary FY 2018 sexual harassment data that is consistent with the #MeToo movement:

  • Sexual harassment charges increased by more than 12 percent – the first increase in at least eight years;
  • EEOC focused on harassment claims and filed 66 harassment lawsuits; and
  • EEOC recovered nearly $70 million for sex harassment victims (up from $47.5 million in 2017).

These statistics do not include the many charges that individuals have filed with state agencies, internal complaints made with employers, lawsuits filed by employees in state or federal courts, or settlements of those claims.

These notable statistics come just one year after the EEOC released an online resource, Promising Practices for Preventing Harassment, in which the agency focused on a checklist of four core elements to “enhance employers’ compliance efforts” when it comes to addressing workplace harassment.

  • Leadership and Accountability – Consistent and demonstrated commitment of senior leaders to maintain a culture in which harassment is not tolerated. Such commitment should be demonstrated, by allocating workplace time to training on harassment, consistently disciplining any employees who harass others, and seeking out feedback from employees on the effectiveness of the employer’s anti-harassment measures.
  • Comprehensive and Effective Harassment Policy – Policy should be clear and communicated to all employees, at every level of the organization. The policy should explicitly apply to applicants and every type of employee, and must make clear that the employer will not tolerate harassment of employees by anyone, including customers, clients, or any other individuals at the worksite. The policy should be easily understandable and periodically reviewed and updated.
  • Effective and Accessible Harassment Complaint Systems – The system should welcome questions, concerns and complaints. It should encourage employees to report potential problems, and provide for prompt, thorough and neutral investigations. It should be flexible enough to allow employees to choose from multiple channels to make their complaint.
  • Effective Harassment Training – Employees need to be aware of leadership values, the policy and complaint systems.  Regular, interactive, and comprehensive training of all employees must be understandable and tailored to the specific workforce.

These guidelines are significant because they are issued by the federal agency that is charged with enforcing federal anti-discrimination laws – and courts are starting to take notice.  Under Title VII of the federal Civil Rights Act, even if an employee does not suffer an adverse employment action (e.g., demotion, termination, etc.), an employer can be held liable for harassment by a supervisor.  However, the employer may avoid liability if it can prove that (a) the employer exercised reasonable care to prevent/correct any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  As a result, most employers have an anti-harassment policy in their handbooks for the purpose of defending against claims.  Recently, however, a federal appellate court acknowledged the existence of an employer’s anti-harassment policy, but specifically asked, “Was the policy in place effective?” In Minarsky v. Susquehanna County, No. 17-2646 (3d Cir. 2018), the plaintiff alleged that she had been harassed by her supervisor for a number of years. The district court granted summary judgment to the employer under the Faragher/Ellerth standard because she never complained to her employer about the harassment. However, the Third Circuit appellate court reversed and remanded the case based on evidence that although the supervisor was reprimanded twice and ultimately fired, the supervisor’s conduct toward the plaintiff was not isolated. Other employees previously complained about similar behavior by the supervisor, and the employer took no action in response. The court held that whether the employer took reasonable care to detect and eliminate the harassment and whether Minarsky acted reasonably in not availing herself of the employer’s anti-harassment safeguards should be decided by a jury. The mere existence of an anti-harassment policy and the plaintiff’s failure to make a complaint pursuant to that policy was not sufficient for the appellate court to uphold summary judgment for the employer.

On the legislative front, California, New York (both city and state), and Delaware, have passed laws that now require employers to train all employees on harassment prevention. New York City requires bystander intervention training. California has specific time and content requirements for its training. Notably, these all seem to be in line with what the EEOC’s Task Force on the Study of Harassment in the Workplace called for in its 2016 report and again in its 2017 compliance guide.  In this growing number of states and cities, employers are no longer allowed to shirk off training for fear of “stirring the pot,” or out of a reluctance to commit resources to anti-harassment efforts.

All of this points to is a rising legal standard for what will suffice to establish an affirmative defense for employers.  A dormant anti-harassment policy in the employee handbook will no longer cut it.

BOTTOM LINE:  In this period of heightened awareness, control what you can by fully implementing the terms of your anti-harassment policies so that your company is in its best defensible position when these harassment claims arise. While we understand that not all employers have the resources to devote to the loftier goals encouraged by the EEOC, there are three concrete steps that you can take to begin mitigating your risks:

  1. Confirm the last time that your company educated all employees on your anti-harassment policy and complaint procedures – and consider another round of training for all levels of employees;
  1. Seek a legal audit of your company’s complaint process;  and,
  1. Seek a legal audit of your company’s investigation procedures (i.e., whether best practices for investigation, documentation and follow-up are being utilized).

 

Politics & Election Law in the Workplace: Midterm Elections 2018

Contributed by Noah A. Frank and Brian M. Wacker, October 24, 2018

2018 election - 3d renderingIt’s that time again: Election Season. Employers must be aware of important legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process. This article provides key reminders to public and private employers to manage the workplace without accidentally violating relevant laws.

Imposing a blanket ban on political discussions may run afoul of the NLRA.         

The National Labor Relations Act (NLRA), which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of employment. As such, employers may not prohibit all political discussion in the workplace because some political speech could intersect with work-related matters (e.g., immigration reform, equal pay, or the minimum wage) and therefore may be protected.

The same is true for an employer’s ban of political insignia in the workplace: an employer may prohibit buttons, signs, or clothing bearing pure political speech in the workplace (e.g., “Vote for Candidate X!”), a ban on similar insignia sufficiently connected to employment issues (e.g., “Vote for Candidate X to raise the minimum wage!”) may violate the NLRA.

Political speech may also implicate anti-discrimination, anti-harassment, & anti-bullying protections.

Hot political issues may overlap with an employee’s protected status. For example, impassioned conversations may be deemed discriminatory or harassing to an individual based on race, religion, national origin, religion, or gender, and, as applicable, could even implicate anti-bullying laws. For example, consider recent issues related to the #MeToo movement, harassment of non-English speakers at restaurants, or even Justice Brett Kavanaugh’s confirmation hearings.

Employers must be careful that political discourse in the workplace does not create a hostile or discriminatory work environment for other employees, or otherwise implicate various equal employment opportunity and civil rights laws on federal, state, and local levels.  Remember: the workplace is not the place to “try out” new material – especially for supervisory and management personnel.

Avoiding a 1st Amendment Covfefe.

The First Amendment protects public employees from discipline and termination as a result of their protected free speech and political views or activities.  Many local ordinances similarly protect county, municipal, and other public agency employees’ political speech.  That said, public employees may not lawfully use public resources – including on-the-clock time – for campaign activities.

The First Amendment does not constrain private employers from banning political discussion in the workplace (subject to the above).  But proceed with caution.  Some state and local laws (such as D.C., California, and New York) prohibit discrimination based on political affiliation and political activity outside of the workplace.  Additionally, some states (like Illinois) prohibit employers from gathering or keeping records of employees’ associations, political activities, publications, communications, or non-employment activities. Similarly, many states (like Illinois, Wisconsin, and Missouri) protect an employee’s privacy surrounding their off-duty political speech on the internet, including speech on social media sites like Facebook or Twitter.

Of course, all employers have a legitimate and lawful interest in ensuring that employees are productive and that political discussions or activities do not impede the normal business operations, especially during working hours.  Related employment policies should be neutral without favoring a certain political view.

Private employers may persuade only a “restricted class” of individuals to vote for or against a political candidate.

Federal election laws define this restricted class as “executive or administrative personnel” who receive a salary and have policymaking, managerial, professional, or supervisory responsibilities.  However, a corporation may not advocate for a particular candidate or political party in its communications to employees outside of the restricted class, including hourly employees.

Employees probably have the right to voter leave.

In many states, employees have the right to take time away from work to exercise their vote.  Often times, missed worktime is paid, but employers can mandate the hours the employee takes so as to minimize the disruption to the workforce and paid leave.

For example, Illinois employees are entitled to two hours of leave, “without penalty,” when the polls are open to vote.  The employee must request the leave at least the day before the election (note: requests made on Election Day may be denied).  The employer may dictate the hours of leave.  However, employers must permit a two hour absence during one’s actual work day where an employee’s working hours begin less than two hours after polls open and end less than two hours before the polls close.  For example, if the polls are open from 6:00 a.m. to 7:00 p.m., then:

  • An employee working a 5:00 a.m. to 9:00 p.m. “double” would be given two hours of paid leave to vote, at a time chosen by the employer.
  • An employee working 6:00 a.m. to 6:00 p.m. either would need to be either (a) released by 5:00 p.m. (and paid for the one hour of missed work) to have a two-hour period to vote, or (b) allowed any other two-hour period off work while the polls are open, with pay, to vote.
  • An employee working from 6:00 a.m. to 3:00 p.m. may be directed to vote after work, without additional compensation.

Missouri employees may take up to three hours of paid leave– but only if the employee actually votes.  Wisconsin permits up to three hours of unpaid leave.  Like Illinois, Missouri and Wisconsin employees must provide notice before Election Day, and employers may dictate the time of leave.

Unlike its Midwest sisters, Indiana has no specific employment voting leave rights.

Of course, California provides unique challenges for companies operating in different states.  Employees must be granted “enough” leave so that they will actually be able to vote, but only two hours of working time needs to be paid.  California employers must post a “Time Off to Vote” notice at least ten days before any state-wide election (failure to post would likely excuse employees from giving at least two working days’ notice of their need for time off to vote).

Employers may want to encourage early and absentee voting.

To minimize disruptions to the work day, employers may want to try to encourage employees to take advantage of early and absentee voting as permitted by the various states.  For example, in Illinois any eligible voter may now request to vote by mail. (It used to be permitted in only special circumstances when a voter was absent from his/her home jurisdiction).

Election judge leave may also be protected.

Wisconsin requires employers to provide an unpaid leave of absence for the entire Election Day to any employee who is appointed to serve as an election official. Employees making this request must give the employer seven days’ notice, and the employer is entitled to request that the election district’s municipal clerk verify the appointment.

Illinois companies with 25 or more employees may limit 10% of the workforce to serve as election judges.  Employee(s) must provide twenty (20) days’ notice of need for leave.  While this time need not be paid, employers may not otherwise penalize employees nor require use of paid time off.

California protects employees from suspension and discharge while serving as an election worker, while Missouri and Indiana have no specific laws on the topic.

The Bottom Line:

Election law is state (and sometimes county and city) specific.  If the election cycle is creating any sort of workplace tension, employers should revisit conduct standards, anti-harassment / workplace bullying policies, and reporting procedures.  Experienced employment counsel may assist with implementing sound policies and practices to help manage workplace issues that may arise during election season.

 

Tax Bill Cuts Deduction for Confidential Sexual Harassment & Abuse Settlements

Contributed by Noah A. Frank and Kelly Haab-Tallitsch, January 3, 2018

On December 22, 2017, the Tax Cuts and Jobs Act was signed into law as P.L. 115-97.  Hidden about halfway into the law, in Section 13307, is an amendment to the tax code on itemized deductions for individuals and corporations. Generally, current law permits employers to treat the costs of settlement payments and related attorney’s fees as a tax deductible business expense. However, the recent amendment eliminates the deduction in certain situations, stating:

No deduction shall be allowed under this chapter for — (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment. (26 USC 162(q)).

This change applies to any payments made after December 22, 2017, including payments for settlements that occurred prior to this date.

The result of this amendment is that business must weigh their desires to (a) deduct the settlement as a business expense, versus (b) keep allegations and settlement of sexual harassment/abuse claims confidential. Employers may have been willing to pay more for an agreement with a non-disclosure provision, but the inability to deduct the settlement may be changing this calculus.

Interestingly, the amendment applies only to sexual harassment/abuse related settlements in for-profit businesses – it does not impact settlements:

  • Related to race, religion, age, disability, other civil rights-type causes of action, employee benefits claims, breach of contract, or other employment related claims.
  • For tax exempt enterprises (that do not have such deductions to take), or
  • For government agencies (that do not pay federal taxes).

The IRS and courts will be left to clarify the nature and extent of this amendment, including (i) what “related to” means; (ii) whether part of a settlement can be confidential if there are multiple causes of action (e.g., sex and age harassment); (iii) whether attorney’s fees may be apportioned between investigation, evaluation, multiple claims, etc. to allow for a deduction if the final result is a confidential, sexual harassment related settlement agreement.

What this means for your business:

Of course, the best position to be in is to prevent claims in the first place. Seek the advice of employment counsel for effective preventative measures. At a minimum, employers must conduct regular antidiscrimination/anti-sexual and other harassment training (bullying, too, in some states), and ensure that employment policies, reporting procedures and the like remain up to date.

But if there is a claim of sexual harassment and/or abuse for which a business decides to settle, the business will be left to determine whether a tax deduction or confidential settlement is more important, and how to handle related issues.

Oh No, Not You (Again): Serious Enforcement of Harassment Policies Is Absolutely Necessary

Contributed by Steven Jados, November 22, 2017

During the past several weeks, it seems that every day has featured new allegations of sexual harassment involving celebrities, politicians, and others in positions of power.

These allegations invite a question to employers: Do you want to be in the news for all the wrong reasons? No? Good, because this moment in time should impress upon all businesses the importance of vigilant enforcement of anti-harassment policies.

HandbookThe first step in enforcement is ensuring that anti-harassment policies are properly communicated to all employees—from entry-level to C-Suite.  All employees should be told, in no uncertain terms, on day one of their employment and regularly thereafter, that they have the right not to be sexually harassed at work. The company’s management—all the way to the top of the organization—must also be put on notice that employees have the right not to be sexually harassed at work, and that credible allegations of harassment will carry real consequences for those who engage in such unacceptable behavior.

Employees must also be trained on how to make internal complaints of harassment within the company.  On that point, employees should know that they can contact human resources, or any appropriate member of management with whom the employee is comfortable with, to disclose improper conduct without fear of retaliation.

Training must also extend to human resources and all members of management, so that they know to recognize harassment complaints for what they are—and so the company’s investigation and enforcement procedures can promptly be put into action. Management must take all complaints or possible situations of harassment seriously, and investigate them to their reasonable conclusion.  There can be no off-the-record complaints; companies cannot look the other way because an accused manager was “just kidding” or, even worse, because an individual “gets to do whatever he or she wants.”  In the end, appropriate disciplinary action and re-training must follow when the company’s investigation determines that harassment occurred.

While proper investigation procedures can shield companies from liability in certain circumstances, failures in implementation, training, investigation, and enforcement of anti-harassment policies are more likely to result in legal liability, negative publicity and adverse financial implications.

Attention employers: Do you have questions on how to implement or communicate anti-harassment policies? Are you uncertain how you should respond to employee complaints? Do you need help in training your employees and management on company anti-harassment policies and procedures? Or, like many employers, are you simply hesitant to investigate harassment allegations against high-level managers?

Ultimately, if you are asking these questions, the best approach is to seek the advice of experienced employment counsel so that potential areas of liability can be contained and minimized, or better yet, eliminated as soon as possible.

EEOC Task Force Identified Risk Factors for Harassment in the Workplace

Contributed by Allison Sues, July 18, 2016

Last month, an EEOC Task Force issued a lengthy report on harassment in the workplace.  The report begins with mention of the prevalence of harassment claims, which appear in almost a full third of the employment discrimination charges that the EEOC received in 2015. Given this, the report recommends that employers reboot their anti-harassment measures. Among other helpful research and advice, the report discusses risk factors that make a workplace more susceptible to harassment, many of which are discussed below:

  • Workforce comprised of many young workers. Those in their first job may not yetjob training, classroom understand appropriate workplace behavior. Reduce this risk by providing orientation to all new employees covering anti-harassment rules and complaint procedures.
  • Workplace where the job requires completion of monotonous or low-intensity tasks. Employees who are not actively engaged may turn to harassing behavior to pass the time. Reduce this risk by considering restructuring job duties to reduce monotony.
  • Isolated workspace. An employee working in an isolated area, such as a housekeeper in an individual hotel room, may become a target for harassment given the lack of witnesses. Reduce this risk by ensuring that employees in isolated areas understand complaint procedures and by creating opportunities for employees to connect with each other to share concerns.
  • Workplace with a culture of alcohol consumption. Workplaces that tolerate or encourage drinking, such as in sales, allow employees to interact with lowered inhibition and impaired judgment. Reduce this risk by training coworkers to intervene if they observe alcohol-related misconduct and by effectuating a process for handling customers who are inebriated and inappropriate.
  • Workforce where some workers do not conform to workplace norms. An employee, such as a lone female working in a male-dominated group, may perceive remarks or humor that is part of the workplace norm as harassing. Reduce this risk by leadership communicating an expected workplace culture of civility, respect, and professionalism.
  • Decentralized workplace.  Local managers may feel unaccountable for their actions or be unsure of how to handle harassment complaints. Reduce this risk by ensuring that compliance training reaches all levels of the organization and by developing systems for employees in geographically diverse locations to connect and communicate.
  • Coarsened social discourse outside of the workplace. A community’s heated discussion of current events involving a particular protected group may impact treatment toward that protected group in the workplace. Reduce this risk by proactively identifying current events that are likely to be discussed in the workplace and reminding employees of the type of conduct that is unacceptable.

In addition to the risk reduction strategies discussed above, an employer may minimize its vulnerability to harassment simply by assessing its workplace for each risk factor and then paying closer attention to the relations of the implicated work groups. Proactive employers should use these risk factors as helpful starting points for conducting anti-harassment training and in monitoring their workplace for potential harassment.