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.