Does Your Company Harassment Prevention Training Miss the Mark?

Most companies are aware of their obligation to train employees about harassment in the workplace.  But a review of recent litigation cases shows that many employers still miss the mark.  Training is required to effectively prevent harassment (while recognizing that not all harassment can be prevented). A training program should not be simply a “check-the-box” “we have a training program” effort.  If we want to truly create a nearly harassment-free workplace, we must analyze what serves as effective training, and implement that in the workplace. Here is a short checklist:

Train employees to recognize problem behaviors.  Presumably, if the goal is preventing behavior, the first element that must be included is helping supervisors and employees recognize inappropriate behavior.  Often, those who do not understand the impact of certain behaviors, or how the behavior is perceived, do not recognize the behavior as inappropriate.  This type of training seeks to have an effect on cognitive perception.  Research has shown that individuals who received this kind of training were more likely to recognize harassing behaviors.

Help employees recognize problem behaviors with respect to all protected classes.  We are seeing a rise in problem inappropriate workplace behaviors  towards other protected classes such as race, national origin, religion, etc.  Many employers began harassment prevention programs by focusing upon sexual harassment.  While it is important to continue to include that, employers must seriously address the other types of harassment, which can be just as costly in terms of workplace morale, employee engagement, not to mention legal defense costs. 

Make sure employees know of leadership support for a harassment-free workplace.  Another goal is helping employees to understand the organization’s policies on the subject matter.  This type of communicative training program can only be effective if it is tied into the communication of shared values and vision, in addition to merely communicating the content of the policy.

Make sure employees know where to go when a problem occurs. Another goal might be to help employees understand how to alert someone when the behavior occurs.    

Make sure supervisors know how to respond. Another goal would be to help supervisors understand how to appropriately respond.[i] Depending upon how each supervisor perceives the situation, this kind of training may increase their skill level in both recognizing the issue, and understanding appropriate responses. 

Determine whether your workplace needs respectful workplace training. A further goal might be to sensitize employees to the seriousness of the issue, and the impact the workplace and individuals.  This type of training seeks to change individual perceptions and behavior, and might also include helping employees to understand why those subjected to the behavior might complain, and how the behavior impacts victims.  Through training that includes role play, harassment scenarios, victim impact, and discussion about offensiveness from different protected class perspectives, this can have an impact on altering attitudes.

Make sure training includes everyone.  While tracking is sometimes difficult in a larger company, making sure everyone receives regular training is important.

Make sure training is not a one-time, lecture format.  To accomplish the goals identified as more proactive, ie, changing culture, training must be delivered in a sustained, effective way, and not a one-time lecture format.  The latter may be effective only to provide information rather than changing attitudes and culture.

Employers and HR professionals will be well served by an in depth review of their training policies, practices and content, keeping these principles in mind. 

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[i]One court held the employer had not reasonably prevented harassment when it did not train supervisors.  The court noted that there was no guidance provided on how to investigate (if that was their role) document, and resolve harassment complaints once they were reported.  EEOC v. Boh Bros. Construction Co., 731 F.3d 444 (5^th Cir. 2013).

Questions and Answers About the New Overtime Rule Released May 18, 2016

I already pay all of my employees a salary, so I do not need to worry about this new rule, correct?

That is not necessarily correct.  Many employers were unaware that in order for an individual to be exempt from overtime, there are 3 requirements that must be met: 

1. The employee must be paid a salary;

2. The salary must meet the salary level test, which is set in the final rule at $47,476.  (Many employers ignored this test, because the previous level was $23,660, and most salaried workers performing exempt duties easily met this test); AND

3. The exempt worker must be performing exempt duties.

The new rule changes the second test, the salary level, but it has caused many employers to take a second look at the duties test as well. 

Why is the new salary level so high, none of my employees are paid that much! 

Congress originally passed the Fair Labor Standards Act in 1938, to guard against abuses in our industrialized society, with workers working long hours at minimal pay.  The law set minimum wage and overtime rules.  It included exemptions for those workers who performed higher level duties, who were paid at a level well above minimum wage.  The salary level was set to assure adequately compensation for those truly performing exempt work.  The Department of Labor places this threshold at the 40^th percentile of earnings of full-time salaried workers in the South, the lowest wage region.  The 40^th percentile is thought to be a dividing line between nonexempt and exempt workers.    

What about part time employees who occasionally work more than 40 hours in a week, do I need to pay them overtime?

There is no distinction between part and full time salary level, so part time workers who make less than the salary level and who work more than 40 hours in one week must be paid overtime.

Do I need to require all of my employees begin keeping time records?

If after an analysis of the workforce, some employees who have been considered exempt are making less than the salary level, you will be required to keep track of their hours and pay time and a half for hours worked over 40, even if they are paid a salary.  For workers performing exempt duties, and paid more than the salary level, you do not need to track their hours. 

What should my employee handbook say about overtime?

If you want to control overtime expenses, your handbook should clearly prohibit unauthorized overtime, require supervisor approval, require accurate recordkeeping, and provide for discipline for those who do not follow the rules. 

Will the rule apply to my business?

This rule will apply to all business that operate in interstate commerce and which are subject to the FLSA, which is virtually every business. 

We are a nonprofit, and I had heard they would exempt nonprofits, are we exempt?

There is no exemption or exclusion for nonprofit businesses.

Do we have to comply today?

The rule will go into effect December 1, 2016, absent an act of Congress.

Won’t Congress pass some law nullifying this rule?

That is unclear at this point, legislation has been introduced, but it is uncertain whether it will pass and become law. 

What do I need to do right now?

If you have not already, it is time for every employer to take a hard look at exempt workers.  There are several exemptions that could apply, and each one should be analyzed as compared to the work that your employees perform, to assure that they are exempt.  For workers under the threshold, you can do one of three things:  1. Make them nonexempt and start tracking hours and paying overtime. 2. Raise their salary to the salary level. 3. Prohibit overtime work (see above for handbooks).

Harassment Prevention Begins at the Top

Workplace harassment has likely existed since the beginning of the workplace itself.  Discriminatory animus against classes of people has existed since the beginning of humanity. Since the 1960’s, Title VII and related discrimination laws have required U.S. employers to take harassment prevention more seriously. As often happens, imposing minimum legal liability prompts responsible employers go further and implement best practices.  It is only through understanding human behavior & psychology, measured against the legal protections that exist, that employers can hope to eradicate this type of behavior in the workplace, or remediate the potential harm when it occurs.

In order to prevent harassment (harassment of all kinds-gender, race, national origin, religion, age, disability) employers need to know what causes or contributes to it.  A classic study of the causes and impact of sexual harassment in the workplace laid the groundwork for understanding the issue.  The study noted: “sexual harassment in organizations is primarily a function of organizational and job characteristics and is more profitably conceptualized and studied at the level of group culture and organizational climate.”  Employers often fail to recognize corporate climate as a legitimate and sometimes critical factor.
In order to effectively prevent harassment employers must be cognizant of what causes harassment.  It is not behavior that occurs without a context which supports it.  Consequently, employers should be familiar with the research on the causes of harassment in the workplace.  The preeminent study noted above identified the causes as  “organizational context” and “job gender context.”

The first factor is the one which address workplace culture as a contributing factor in harassment.   This includes such factors as:  1. How does the organization communicate its tolerance of harassment? Is it apparent that top leadership supports zero tolerance? 2. How does the organization handle complaints about harassment? Are they handled promptly, with sensitivity, and zero tolerance? 3. How does the organization protect against retaliation and encourage reporting? 4. How does the organization punish or correct those who harass? Higher levels of harassment were reported in cultures or climates that did not appropriately address these issues.

The incidence of harassment was even higher in male dominated cultures with job tasks seen as traditionally male oriented tasks. The conclusion of the study was that incidents of harassment cannot be separated causally from their organizational climate. Increasingly, studies on general workplace incivility have focused on how tolerance of incivility in the workplace can lead to defining a workplace as tolerating behavior that could lead to harassing behavior.

Recent research confirms these findings.  These studies teach us that “harassment occurred less frequently in groups whose members perceive that the organization’s upper levels will not tolerate such behavior as well as in more gender-balanced groups.” If an employee with a tendency to engage in this behavior perceives that the organization tolerates it, the organization will experience an increase in the behaviors. So what is the key to stopping harassment?  Start at the top by creating a leadership culture of zero tolerance.  Leaders need to trained in zero tolerance behaviors.  Leaders must strongly and publicly support zero tolerance policies.  Workforce training for all employees, conducted regularly, must reinforce zero tolerance, identify specific inappropriate behaviors, and demonstrate support for reporting violations, and eliminating the behavior.  Other factors that contribute to a supportive environment, which reduces harassment, are a sense of team culture, supervisor support, promotion opportunities, and supportive structure.  More recent studies show that an organization which seeks to eradicate bullying and incivility, and develop a more professional atmosphere, is less likely to see harassing behavior.

An organization seeking to prevent harassment must start at the top by instilling a leadership that reinforces all of these behaviors.  Top management commitment to a zero tolerance policy is the best way to prevent harassment from occurring.
Future articles will address some aspects of this topic, including effective training, retaliation prevention, prompt correction, and supportive systems

Are You Prepared? The New Overtime Rules Could Be Just Around the Corner

 The best advice for employers waiting for the new overtime rules?  Hope for the best, and prepare for the worst.  Last summer the federal Department of Labor (DOL) proposed a new overtime rule which would require employers pay time-and-a-half overtime pay to all workers, even those performing exempt duties, unless the workers were paid at least $50,440 per year (for 2016, rising each following year).  In Idaho’s job market, that is a hefty sum that many currently exempt workers are not receiving.  Previously exempt workers would then be asked to track their hours, report them, and be paid overtime for any hours worked over 40 in a single workweek. 

The best?  Perhaps for employers seeking to avoid overtime liability for lower paid exempt workers, the best result would be that DOL withdraws the proposed rule (not likely) or that Congress rehects the rule or passes legislation signed by the President pre-empting the new rule (also unlikely).  Employers don’t have to wait for finalization of DOL's proposed overtime rule before beginning to analyze their workforce and the implications of the new rule. 

To review:  In order for a worker to be exempt from overtime payments, three criteria must be met:  1.  The worker must be paid a salary, a set amount per month that does not change with the amount of work performed (so workers paid on an hourly basis can never be considered exempt); 2. The worker must be paid more than the salary level set by the rule (currently $23,660); and 3. The worker must perform exempt duties (the most common being executive, administrative, or professional duties).  The salary level test has gotten little attention over the past few decades because it was set so low that almost all exempt workers met it.  But when DOL proposed to double the salary level, employers were forced to pay attention.  The rule was released last year, and comment was invited.  Nearly a quarter million comments were received.  The next step was for DOL to review the comments, and either amend the rule or release it as a final rule.  While we do not know when the final rule will be released, one of the last steps in promulgation of a final rule is to send it to the federal Office of Management and Budget for review, and that step occurred on March 15.  So we know that the final rule is close to being released, and it is anticipated in the next couple of months. In the meantime, a bill was introduced in Congress that would nullify the effect of the rule, but it will take some time for that to be considered (and with no final rule it may be premature) but even if legislation does come forth, it is unlikely the President would sign it. 

·         So what should employers do now? 

·         The first step is to begin analyzing current positions.  For those that are considered exempt from overtime, analyze their salary levels.  For those that fall below about $40,000 in salary, it is almost certain that DOL will raise the salary level above that point, so those positions should be flagged.  For those that fall between $40,000 and $50,440, determine the impact of raising all salaries to the higher amount.  While no raises need occur until the final rule comes out (and there will be a 60 day comment period, at least) after this analysis the employer will know the financial impact of the possible changes and can be prepared to take quick action. 

·         Analyze how many hours a week the employees below the higher level are working.  For those that may not be raised to the salary level imposed by the final rule, determine the potential cost in overtime.

·         Examine current rules on overtime, and make sure employer policies on seeking permission are clear. 

·         Begin preparing communication with all employees to assure them of their value to the company, while explaining the potential impact of the new rules on each class or position.  

Dealing with Workplace Violence

With the latest workplace shootings fresh in our minds, employers may turn to the obvious question:  Have we done enough to prevent and promptly respond if it happens here?  Employers must strike a balance between generating hysteria and encouraging vigilance. 

Here are some things employers can do:

Use effective hiring practices to screen out potential violence:  Screen incoming employees for past incidents of aggressive behavior.  In screening processes, make sure that you are asking questions about past incidents, but in a way that targets the behavior, and not potential mental illness.  Ask if the employee was ever disciplined for fighting with co-workers or clients, if the employee ever violated workplace safety rules, etc. Idaho statutes provide immunity from lawsuits for employers who share information upon being asked. (PS Congress also is considering a federal law providing a safe harbor for employers who report violent behavior.)  Also, consider conducting a criminal background check.  While you must be careful to avoid discrimination charges (more on that in a future blog post) by conducting a background check you will be aware of whether there are aggressive or violent tendencies in the candidate that could lead to violent behavior in the workplace. Screen out the behavior, not the cause.

Implement a workplace behavior policy that addresses violence and bullying:  Screening techniques are helpful, but anger might build over time, which means that an existing employee could begin to exhibit violent tendencies.  To assist in such situations, the employer should be proactive. Have a policy in place that governs respectful workplace behavior, not just related to discrimination, but which also addresses angry behavior, fighting, aggressive behavior, threats, etc.  Allow employees to report such behavior by promising that they will be protected from retaliation. Have multiple avenues for employees to report concerns.  A bullying policy can address many of these issues.  Make sure to include behavior that is verbal or physical.  Address the use of profane language, insults, humiliating another person, destruction of property of another, name calling, ridicule, and can even include gossip and spreading false rumors.  Do not assume that an employee is mentally ill, instead approach this issue from the standpoint of regulating the inappropriate behavior.  Then, when someone violates the policy, impose consequences on everyone, not just one employee.  Make sure your discipline is consistent. 

Also train managers on proper action to take if the employee indicates the aggressive behavior is due to a disability.  In a 2015 case, a worker reported he was having homicidal thoughts, and asked for treatment.  No behavior had yet manifested in the workplace.  Instead of offering mental health treatment, the employer waited three weeks, then terminated without clearly identifying the reason other than the employee’s disclosure.  The trial court allowed to case to go to trial, indicating that the case would test the competing policies of accommodating disability and protecting the workplace. 

Train managers on what to look for in spotting potential threats:  Train supervisors on what to do when they receive a complaint, or how to spot problem behavior before a complaint arises.  Bring in an expert in violence prevention and train managers on what to look for in behavior that is potentially violent.  Have the expert train managers in techniques to deal with anger in the workplace.  Put protocols in place to assure the manager’s safety in addressing the angry employee, such as using the buddy system during confrontations, meeting with doors open, having a plan for a quick exit, knowing when to call 911 for help, etc. Consider partnering with local police agencies to review your workplace for safety and security. Also consider bringing in a professional to consult on investigations into violent behavior, to help assess the risk. 

Workplace violence seems to be on the rise, and must be addressed, but these three areas are good ways for employers to be proactive in preventing and assessing risks.  

Careful Hiring Can Cause Additional Headaches if You Don’t Know the Law!

A responsible employer may be conducting routine background checks prior to hiring.  This is a standard practice in business, making sure you know what you are getting when hiring an employee.  But some types of actions that an employer can take in conducting a background check may cause more headaches if not done properly.  Here are some things to keep in mind.

The Fair Credit Reporting Act

If you use any third party to conduct a criminal or other background check, you must comply with the Fair Credit Reporting Act.  Amazon and Staffing Management found this out the hard way when they were sued in mid-2015 in a class action lawsuit seeking damages for all applicants rejected based on a criminal background check.  While the suit has not yet been certified or resolved, the damages could be astronomical.  What did Amazon allegedly do wrong?  They hired Staffing Management to conduct criminal background checks, and when a cocaine possession conviction came up on the plaintiff’s record, Amazon did not hire him.  But they also did not provide him with notice about conducting the check, giving him a chance to dispute the report, as required by the federal Fair Credit Reporting Act.  FCRA requires employers who are using a third party to conduct background checks to get an applicant’s approval prior to conducting a background check, inform applicants that the information gathered might be used to make employment decisions, provide applicants with a summary of their rights, and provide them with any negative report prior to making the non-hiring decision.  This failure to follow FCRA may indeed cost Amazon, and many other companies, a lot of money. 

Anti-Discrimination Laws

The EEOC also has guidelines for background checks, stemming from a long time mistrust of such checks, especially criminal background checks, as potentially be used to screen out applicants based on race or other protected classes.  Consequently, the EEOC requires that:

·         The same standard be used for all applicants regardless of protected class,

·         Employers avoid criteria for exclusion that could have a statistically higher impact on persons of a particular class,

·         Employers should be prepared to make exceptions if issues revealed during a background check were the result of a disability.

·         The illustrated need for, and the use of, criminal background checks, should be based on criteria that are job related and consistent with business necessity. 

The EEOC also strongly recommends that employers use these criteria in screening for criminal history: 1. Look at the nature and gravity of the offense. 2. Look at the time that has passed since the offense. 3. Look at the nature of the job sought. 4. Conduct an individualized assessment while using similar standards for all applicants.

This is an area where the EEOC is litigating several cases, and states and localities are beginning “ban-the-box” efforts to forbid asking about criminal background, so it is wise for employers to pay close attention to this area. 

Genetic Information

The Genetic Information Nondiscrimination Act (GINA) forbids employers from gathering or using genetic information to make employment decisions.

Medical Testing

Pre-employment medical inquiries are specifically prohibited  by the ADA and EEOC enforcement guidances until after a conditional offer of employment is made. Then, if medical information is received, it cannot be used to screen applicants with disabilities.  

Social Media Searches

Privacy laws are a concern when conducting research on social media, so only publicly available information should be searched, and used carefully. 

What should employers do?

Develop specific, job-related criteria for what types of criminal convictions will exclude individuals from employment.

If you use a third party to conduct background checks, make sure you are following all of the FCRA requirements. 

Keep all information gathered confidential.

Train all supervisors on what kinds of things can be asked or explored in the application process.  

Should Idaho Employers Include LGBT Nondiscrimination in Their Policies? The Surprising Answer is Yes

Idaho media over the past few years has focused heavily on the “Add the Words” campaign, which advocates changing the Idaho Human Rights Act to add sexual orientation and gender identity to the provisions prohibiting employment and public accommodations discrimination.  With the legislature’s actions in refusing to “Add the Words” and all of this publicity, it might surprise many Idaho employers to learn that they may already be subject to such prohibitions. 

The answer to the question lies in the dual nature of the regulatory environment in Idaho, and in the changing nature of the enforcement and interpretation of those laws over the past two decades.  Most employers in Idaho are covered by the Idaho Human Rights Act, which covers employers with 5 or more employees.  But many employers are also covered by Title VII of the federal Civil Rights Act, which covers all employers with over 15 employees.  Many educational employers are also covered by Title IX. 

Over the past two decades, interpretation of Title VII and Title IX has progressed to the point that it is now generally accepted by the federal regulatory agencies that discrimination against an employee because of gender identity (often called transgender) is discrimination on the basis of sex, and thus prohibited under Title VII and Title IX.  And in recent years, the EEOC and the courts have also begun to examine discrimination against sexual orientation as a form of sex discrimination as well.  Recent EEOC pronouncements and court decisions make these two points clear.  In 2012, the EEOC adopted a Strategic Enforcement Plan that included as a priority:  “coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply."  Since then, the EEOC has prosecuted many actions involving these issues, has begun tracking complaints related to these issues, and the EEOC has recovered $4,138,828 in monetary benefits for LGBT worker claims in the enforcement years 2013-2015.   Over the past decade, the courts seem to be increasingly sympathetic to the EEOC’s interpretation of Title VII, and the U.S. Supreme Court’s decision in 2015 banning state action to prohibit same sex marriages will only increase court acceptance of the EEOC’s position.  In January of 2016, in the most recent appellate court opinion to address these related issues, the Eleventh Circuit Court of Appeals (located in the Deep South), found that discrimination on the basis of gender identity (transgender) would, if proven, violate Title VII and subject the employer to liability. Chavez v. Credit Nation Auto Sales LLC, 11th Cir., No. 14-14596 (Jan. 14, 2016). (PS The answer is even more clear if an Idaho employer is a federal contractor, because an amendment to Executive Order 11246 in 2014 imposed anti-discrimination bans based on sexual orientation and gender identity for any federal contractors. In addition, some municipalities, like the City of Boise, have explicitly prohibited discrimination by employers, and will impose fines or jail time for violations-no private right of action for damanges)

Tips for Employers: 

• Employers must ensure that decisions related to employees are made solely on the basis of legitimate and nondiscriminatory reasons; the mere suggestion of discriminatory animus could expose employers to unexpected liability and the expense of defending a claim.
• Employers should consider adding to their training and employee handbooks a statement about their intention to treat all employees equally and fairly regardless of their marital status, sexual orientation or sexual identity. Such a statement can be added to an existing provision declaring that the organization does not discriminate unlawfully on the basis of race, religion, color, national origin, age, or disability. It’s worth the effort to be sensitive in these areas. This is a proactive step that not all employers feel comfortable with, but it is a preventive step that will assure a more respectful workplace, and prevent potential legal action in the future. 

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What Happens Online, May Not Stay Online: Employers Must Pay Attention!

The electronic world has overtaken our culture, and many studies show that we spend more time on our phones or electronic devices than we spend at work or sleeping.  Daily use of the Internet has increased over the last five years by 75% to 100%. 

Employers should certainly regulate use of the Internet and mobile devices at work, but may think that online activity that happens in the worker’s personal life is not a concern.  Unfortunately, not all personal use of online devices is truly personal, as it may leak into the workplace when it involves employees. 

Cyberbullying has become a major concern.  When the cyberbullying connects back to the workplace, it is as much the employer’s issue as inappropriate behavior between employees off premises.  The employer cannot rely on the “off premises” exception to regulating workplace behavior (PS, there is no “off premises” exception when the conduct or behavior affects the workplace.)

Harassment policies, anti-discrimination policies, and use-of-technology policies should clearly prohibit cyberbullying and online harassment. While no federal law specifically prohibits cyberbullying of employees, Title VII of the Civil Rights Act prohibits an employer from allowing a hostile work environment to exist, where the hostility is based on a protected class. This law would apply to conduct that happens online between employees.

Recent cases include examples of a female supervisor harassing a male subordinate by sending sexually explicit text messages.  In one text, she asked the employee to send back explicit pictures of himself. Those messages, along with other workplace behavior, were enough for the court to find that the plaintiff was subjected to a hostile work environment.  The court was not concerned about the fact that the explicit text messages were sent off premises or after work hours. 

 In another case, an emergency medical technician claimed that threatening Facebook messages sent to her contributed to a retaliatory environment. The plaintiff had complained about sexual harassment, and the offending employee had been fired.  She then received several hostile messages on Facebook. calling her derogatory names, and saying, “I will see you fall you dirty lesbian and every one of you one by one [for] what you did to that man, the one from emergency management. …” When the message was traced back to a computer in the employer’s building, the court said it raised an inference of a violation of Title VII.

Implement a Policy, but Beware of the NLRA!

Employers are almost caught between two federal laws when acting to prevent cyberbullying or cyberharassment. 

As noted in a previous post, the National Labor Relations Board has ruled that many employer policies seeking to prevent workplace cyberbullying could violate Section 7 of the NLRA, which protects an employee’s right to engage in concerted activity, he explained. This restriction applies to all employers, regardless of whether they are unionized.  Employee speech is protected when it addresses working conditions, because workers have the right to engage in concerted activities for mutual aid or protection. For example, while posting someone’s photo online is a common form of cyberabuse, the board has concluded that it is unlawful for an employer to bar employees from taking pictures of co-workers. Policies that govern employee use of the internet are mandatory, but the policies should prohibit abusive behavior without interfering with the employee’s Section 7 rights.

Employer’s To Do List:

1.   Make sure you have a social media policy.
2.  Make sure that online behavior is covered in your anti-harassment policies and training.
3.  Make sure your social media and harassment policies contain an exception for Section 7 rights.
4.  Immediately investigate and take corrective action when you receive a complaint, even if it is about off premises online behavior. 

Ignoring Complaints Could Get in Your Company in the News (And Not in a Good Way!)

An illustrative investigation recently hit the news.  The January, 2016 Washington Post headline reads:  "Female Park Service employees say they were harassed on Grand Canyon trips"  The article details an extensive investigation undertaken about operations at National Parks along the Grand Canyon.  Many details were included in the report about the trips into the canyon, and alleged harassment of female Parks employees.  The sad part of reading the investigative report (which is available online here https://www.doioig.gov/sites/doioig.gov/files/Misconduct_GrandCanyonRiverDistrict_Public.pdf) is not that the 2014 investigation revealed misconduct.  The sad part is that the report acknowledges that there had been complaints about inappropriate sexual conduct for over a decade, and complaints had been submitted to supervisors, but nothing was done to correct the overall pervasive atmosphere which allowed the behavior to occur.  The earliest behavior detailed in the complaint was an event in 2005, a decade before the complaint investigation was concluded and additional action taken.  The investigation concluded that there was a long term pattern of sexual harassment and hostile work environment created, and very little done to try to remedy the situation. It took 13 women writing a letter to the Secretary of the Department of Interior in Washington to launch this comprehensive investigation and seek to implement corrective measures that would eliminate this pervasive atmosphere of "what happens on the river, stays on the river."  After the investigation was completed, investigators had found not only the original 13 complainants had witnessed inappropriate behavior, but an additional 22 witnesses were interviewed who also witnessed such behavior.  

The lesson for employers and their attorneys and HR professionals, is that a complaint which may seem simple in its smaller context, and which you may think is fully resolved, could be part of a larger pattern of "culture" within an organization or subset of an organization.  In those circumstances, it is not enough to reprimand an employee for one individual act, it takes a culture change.  Here are some lessons:  

1.  Train all first level supervisors, often, to make sure they are tracking complaints, and dealing with them promptly and appropriately. If the complaint seems to be indicative of other types of behavior that may be enhancing or encouraging inappropriate behavior, address the larger context.  
2. If a single entity or employer receives more than one complaint about "atmosphere" or about one or a group of employees, make sure to look at the bigger picture of culture within the workgroup, and don't be restrictive in the scope of any investigation.  
3.  Do not take action against an employee who has previously complained about misconduct without thoroughly investigating the connection between the alleged misconduct and the fact that the employee was the one who complained about others. 
4. Make sure that if discipline is administered, that it is uniform and appropriate to the circumstances, without leniency for certain positions, or more senior level employees.  Behavior  that is wrong should be disciplined, otherwise the message sent is that it is okay.  If one employee is disciplined, but another is not, employees might receive the message that certain employees are favored and may continue inappropriate behavior.  

Further discussion of this is warranted and will appear in additional blog posts.  

Read more here: http://www.idahostatesman.com/news/nation-world/national/article54438565.html#storylink=cpy

Investigators Love the Talk About Employer Policies too!

New Year’s Resolution:  Review and Update Employment Policies! 

Employers have many reasons to make a New Year’s resolution to review and update their internal employee policies.  The trend in federal regulatory agencies towards stricter review of internal employment policies is one that should give employers pause. 

Most prominent among the agencies taking a strong stance on employee handbook language is the National Labor Relations Board.  Even if your company does not have a labor union, recent rulings from the NLRB may affect the validity of your employee handbook, because.  Section 7 of the National Labor Relations Act, which applies to all employers, says that employee speech is protected when it addresses working conditions, because workers have the right to engage in concerted activities for mutual aid or protection. 

In particular, the current Board, which has been operating from 2012-2015, has taken a very pro-employee view of handbook language, and will strike any handbook language where the language could reasonably be interpreted to chill the rights of employees to discuss working conditions.  Here are some examples of the types of policies that have been struck down in this time frame: 

Workplace conduct: The Board struck down a policy that required employees to be courteous to customers, co-workers, and management. They also struck down a handbook prohibition against “insubordination or other disrespectful conduct (including failure to cooperate fully with Security, supervisors and managers),” and a rule against insubordination or disrespectful conduct, because it did not carve out protected Section 7 activity in complaining about working conditions. The Board may have accepted a prohibition against “insubordination” but adding disrespectful conduct made the policy provision suspect. 

Wages:  The Board continues to strike down employee policies that forbid discussion of confidential wage information.  Employees cannot be prohibited from discussing the terms and conditions of employment, such as wages, hours, schedules, or workplace complaints.

Confidentiality of Company Information:  Rules that prohibited employees from discussing company information with news media, government agencies or other third parties about wages, benefits, or other terms and conditions of employment have also been struck down by the NLRB. The Board also struck down a policy against discussions on the Internet or blogs about the company.

Protection of the Company’s Reputation:  The Board has struck down policies that prohibit behavior that would cause harm to the Company’s business or reputation, disrupt the company’s business relationships, or undermine the reputation of other company employees.   In order for such rules to be upheld, they cannot include overly broad prohibitions, or must carve out protected Section 7 activity. 

Aside from the NLRB and challenges to employment policies, here are some challenges that will come to employee policies in 2016:

Same Sex/Transgender Discrimination & Harassment: With the 2015 approval of same sex marriage, media focus on same sex and transgender issues, and the EEOC’s enforcement of discrimination against same sex and transgender employees, employers will want to review policies to assure that their language is in compliance with the current regulatory environment.

Religious & National Origin Harassment: As noted in a previous blog post, there is increasing scrutiny of the potential for religious and national origin harassment, so employers would be wise to take another look at those policies. 

Accommodations in the Workplace:  Supreme Court decisions in 2015 regarding religious and pregnancy accommodations necessitate another look at handbook language in those areas.

Wage & Hour concerns:  Upcoming changes to the standards for overtime and exemptions from overtime warrant a closer look at current policies.

In short, companies would be well advised to review their employment policies at least on an annual basis, but this year there is special reason to be concerned about updating handbook provisions given the regulatory environment.  Make handbook review one of your New Year’s Resolutions! 

Terrorism, Donald Trump, Media Hype, and Religious and National Origin Discrimination

What do all of these things have in common?  Fear is sweeping through some parts of the country, and that fear is breaking out into the public forum in the form of an intense focus on terrorist incidents at home and abroad. Employees are subjected to highly publicized statements by political candidates demonizing entire nations, refugees, or those of a particular religious faith.  These public discussions leak into the workplace, and have resulted in an increased focus on appropriate employer responses. 

On December 23, 2015, the EEOC responded to heightened concern about the treatment of those who are, or are perceived to be “Muslim or Middle Eastern.”  The EEOC, as part of their responsibility to enforce laws prohibiting discrimination on the basis of race, gender, national origin or religion, issued a document called:  “Questions and Answers for Employers:  Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.”  The EEOC made it clear that employers cannot tolerate harassment or discrimination against those who are perceived to be of a particular religion, Muslim, or of a particular national origin, Middle Eastern, simply because of public fears or misconceptions.  The EEOC reminded employers that they must not discriminate on the basis of religion, ethnicity, country of origin, race or color, and they must not allow harassment based upon these categories, or based upon a perception that someone might be in one of these protected classes.  In addition, employers must reasonably accommodate religious beliefs, including accommodation in practice or dress, unless it is an undue hardship. 

Some of the examples included:

•        An employee wearing a hijab, or head covering as part of their Muslim faith, and whether discomfort in the workplace, from either employees or customers, would allow the employer to ask the employee to remove the hijab.  The short answer is no, the employer is required to accommodate religious beliefs, and cannot use customer preference as an excuse, but instead should educate employees on the importance of accommodating religious beliefs, and avoiding discriminatory assumptions about a particular person. 
•       An employee who is Muslim is engaged in increasingly disturbing conversations with a co-worker expressing fear and contempt for the Middle East.  The EEOC made it clear that the employer has a responsibility to assure a safe workplace, and while opinions may not rise to the level of unlawful harassment, they should be stopped so that the situation does not escalate.  The EEOC preference is clearly in favor of educating employees on respectful workplace. 
•       In another example, an Arab America is subjected to name calling from co-workers, ie being called names like “the local terrorist” and “ISIS.”  Since these are clearly a reference to national origin and/or religion, and are used in a derogatory way, pervasive use of those terms to refer to an employee would be similar to using derogatory female terms to address female employees, behavior commonly accepted as inappropriate in the workplace.  The EEOC clearly would act against employers who did not take action to prevent or correct promptly workplace behavior that involves ethnic or religious slurs.  When such harassment is reported, action should be taken to end the harassment, and correct its effects on the complaining employees.  Corrective action could include counseling, a warning, or more severe discipline for the harasser.

Employers who see any of these types of situations within their workplace should act immediately to reinforce respectful workplace behavior.  Additional respectful workplace training might be a good idea even for employers not faced with these issues, in a year when political rhetoric will dominate the media and the minds of many US workers.  In addition, employers should review their employment policies and perhaps even reissue them to all employees, making sure that the type of behavior outlined by the EEOC in this guidance is strictly prohibited.