Equally as troubling as the actual allegations of misconduct is the fact that these reports have pulled back the curtain to reveal organizational cultures that have often permitted the systemic and pervasive harassment to continue for years on end. Employers that have stuck their head in the sand about a toxic workplace environment could be forced to answer for their years of neglect both in the courtroom and in the court of public opinion.
The time is now to examine your organizational culture to ensure that you are not only providing a workplace free of harassment, but also a workplace culture that does not embolden your employees from carrying out unprofessional and hurtful behavior. The good news is that this is a fairly straightforward process, and we have boiled it down to a five-step plan that you can implement immediately. The bad news is that members of your organization might find it uncomfortable to address this situation and confront this sort of behavior. It is imperative, however, that human resources representatives, legal counsel, business owners, and managerial personnel take the lead and force your organization to adjust to this new reality without further delay.
Step One: Make Sure Your Policies Match Modern Standards
All too often, employers amend their handbooks to address developing legal and administrative changes (paid leave policies, for example, or shifting organizational structure), but will leave in place some of the tried-and-true policies that have served the company for years without thought of revision. If you haven’t updated your sexual harassment policy in the past several years, you might be behind the curve. Recent court decisions have placed greater responsibility on employers to establish policies that address sexual harassment in a more realistic and thoughtful manner.
At a minimum, your policy should clearly indicate that you have “zero tolerance” for sexual harassment in any form. You should clearly define the term and provide examples of conduct that would run afoul of your standards (including, for example, boorish behavior, off-color jokes, unsolicited hugs or shoulder rubs, sharing pornographic images, etc.) so that there is no confusion.
Your reporting policy should encourage employees to report their concerns about potential harassment immediately. You should also provide several avenues for the employee to provide their report, whether through their immediate manager, a human resources representative, another manager, or even a hotline number or intranet reporting mechanism.
Finally, your policy should clearly guarantee your workforce that they will not face retaliation as a result of their report. Providing this level of safety and security is important if you truly want to foster an open and respectful atmosphere.
Step Two: Disseminate Your Policies In A Thoughtful Way
Your policy is worthless if it sits on a shelf and is never accessed by your employees. You need to ensure that your workforce is aware of your position on sexual harassment if you want the policy to be effective. Most employers distribute the policy as part of the onboarding process and require new employees to sign an acknowledgment of receipt. And that’s a good start – but it’s just a start. You should take additional steps if you want the policy to truly become part of your workplace culture.
At the time of hire, a human resources representatives should take the time to specifically describe your harassment policy and start a conversation about your organization’s zero-tolerance philosophy. That lets the new employee know right out of the gate that you take this issue seriously. If your organization has an intranet, you should consider hosting the policy there permanently so that it can be readily accessed by anyone at any time. You should periodically provide copies of the policy as a standalone document to all of your employees to remind them of their rights and responsibilities. A good way to accomplish this is by having one of your highest level officials – if not the highest level executive – distribute the policy from their email account or via signed memorandum. By setting the tone from the top, your organization will send a signal to everyone that you take the subject matter seriously.
Step Three: Train Your Managers To Address Issues And Avoid Common Mistakes
Training your managers on your sexual harassment policy is a critical step. Your organization could be held automatically liable for any proven sexual harassment if carried about by a managerial employee, so all of your hard work in developing and disseminating your policy could be deemed irrelevant if your managers act inappropriately. You need to drill your policies into their minds on at least an annual basis through formal training sessions.
There are a few common mistakes to warn your managers about at these sessions. First, many companies get in trouble when managers ignore inappropriate behavior that they believe is “welcomed” by the victim, or if it appears to be part of a mutual and voluntary interaction. Your managers need to know that victims of harassment will often pretend to “go along” with the behavior for fear of losing their job, or simply because they want to appear to be part of the team, but that they will more than welcome managerial intervention that puts a stop to the conduct. Moreover, the conduct that your managers see out in the open, or hear about through the grapevine, is often just the tip of the iceberg, and it could signal that much worse behavior is taking place outside of your knowledge. For these reasons, your managers should be trained to address any behavior they witness or hear about, no matter if it appears that it is all in good fun and that no harm is occurring.
Second, it is common for some managers to allow extra leeway for certain employees because it is commonly accepted that their behavior is simply a harmless personal idiosyncrasy. Reports about misconduct or inappropriate behavior are met with a chuckle and a statement such as, “Oh, that’s just Harvey being Harvey!” It becomes commonly known around the workspace that you need to operate differently around that employee because they’ve been acting like that forever. “He likes to give hugs but he’s harmless,” or “Just don’t caught in his office one-on-one and you’ll be fine” are common sentiments in these workplaces. This is exactly the kind of attitude that leads to festering situations and that should be eradicated from your workplace. All employees should be held to the same standard, no matter how long their actions have been tolerated in the past.
Step Four: Promptly Investigate Any Issues Raised
Once you receive a report of sexual harassment, it’s time to take immediate action. If you delay your investigation until work slows down or until an important project is completed, you will send a signal to your workforce that this isn’t a priority. Moreover, you could face hostile questioning under oath in a subsequent lawsuit about what you were doing that was so important that it trumped the well-being of your workers. Therefore, you should clear the decks and do everything reasonably possible to make the investigation your highest priority.
Your human resources department should take the lead in the investigation, as they are trained to carry out an effective and legally compliant inquiry. There is no cookie-cutter approach to investigations because they are all unique depending on the circumstances, but there are some common threads that accompany a reasonable examination:
Step Five: Consistently Enforce Your Standards
Finally, and perhaps most importantly, you need to take action against the accused employee if the allegations against them are substantiated through your investigation. If your workforce figures out that your policy is toothless, they will lose respect for your organization and will feel dissuaded from reporting other misconduct. This could lead to legal trouble, but also to flagging morale and high turnover among your key contributors.
Your goal in meting out a response is to take action sufficient to ensure that the behavior is not reasonably likely to occur again. In some situations involving mild misconduct, it might be sufficient to give a documented verbal warning to the employee along with an acknowledged reminder of your sexual harassment policy. In more severe or reoccurring situations, the only reasonable possible response is termination. In between the two are a whole host of possible options, including written warnings, mandatory professionalism classes, behavioral improvement plans, suspensions, demotions, and the like.
Some employers run into trouble when they inconsistently apply standards to high-performing or high-ranking individuals accused of harassment. When push comes to shove, these organizations value the contributions these employees make to the company’s bottom line more than they value the ideals contained in the sexual harassment policy. There is no better way to hurt morale at your organization and neuter your harassment policies than to give a pass to a key executive accused of misconduct while coming down hard on a mid-level manager or hourly worker accused of similar behavior. On the other hand, your policy’s effectiveness will be given a boost if your workforce sees it applied in an evenhanded manner, no matter who is accused of a violation.
What Next?
You will soon receive additional guidance about how to prevent sexual harassment in the workplace from the Equal Employment Opportunity Commission (EEOC). In an instance of opportune timing, the Commission recently announced that it will soon release updated guidelines on the subject for the first time in over 20 years. Acting EEOC chair Victoria Lipnic acknowledged that “the update comes up at a time of burgeoning publicity for sexual harassment and assault in the workplace,” though she said the timing of the update was “purely coincidental.”
After several years of drafting and editing, which included incorporating public opinion on key issues, the Commission unanimously approved the new guidelines in early November. The draft guidelines are in the process of being reviewed by the Office of Management and Budget, and, once approved, will be released to the public. Fisher Phillips stands ready to analyze the new guidelines and provide additional recommendations once published, which is expected in the near future.
Conclusion
These are challenging times for employers. You are being asked to reexamine your organizational culture to ensure you are providing a safe and professional working environment for everyone in your service, and it’s not always easy to take an honest look at what has been created. However, going through this exercise will make your organization even stronger. Once you have addressed this situation and put into place an effective mechanism for addressing possible harassment claims, your workforce will be free to accomplish their mission without troubling distractions interfering with their jobs.
Authors
Jennifer Sandberg – Partner, Fisher & Phillips
Joseph Shelton – Partner, Fisher & Phillips
However, the National Labor Relations Board (NLRB) has taken a surprising position by finding many of these policies and trainings to be in violation of federal labor law. If you are one of the many employers who have courtesy and civility rules or trainings, your business may unfortunately be susceptible to scrutiny by the NLRB.
Background: The NLRA And The Lutheran Heritage Standard
Under Section 7 of the National Labor Relations Act (NLRA), all employees have a right to engage in protected concerted activity, even if they are not unionized. This includes activities performed for their mutual aid or protection, such as discussing the terms and conditions of employment. Under the NLRA, it is an unfair labor practice for you to interfere with, restrain, or coerce employees from exercising their Section 7 rights.
The NLRB’s position on whether an employer’s courtesy and civility rules violate federal labor laws was established in the 2004 case of Martin Luther Mem’l Home, Inc., dba Lutheran Heritage Village-Livonia. This case established the Lutheran Heritage standard, which provides that an employer’s civility rules are unlawful if they restrict activities protected by Section 7 of the NLRA. Even if a rule does not explicitly restrict protected activities, it may still violate the NLRA if the language could be reasonably construed as such, if the rule was promulgated in response to union activity, or if the rule has previously been applied to restrict the exercise of Section 7 rights.
Innocent Civility Rules Can Violate The NLRA
Using the Lutheran Heritage standard, the NLRB recently invalidated a number of rules that had been implemented with the purpose of creating a respectful and well-managed workplace. In these cases, the agency focused on whether an employee “would reasonably construe” the policy as prohibiting protected conduct under Section 7. To employers’ detriment, the NLRB has consistently used a broad interpretation of the NLRA to protect employees’ rights. For example, the current Labor Board believes a policy prohibiting profanity, verbal abuse, or disparagement of the company can violate Section 7 if employees could reasonably construe their protected activity falls under one of those categories.
One such case arose against T-Mobile U.S.A. in 2016, when the NLRB found the following employment policies unlawful:
[The employer] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation… to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information, employees are prohibited from recording people or confidential information using cameras….
If you feel you have not been paid all wages or pay owed to you, believe that an improper deduction was made from your salary, or feel you have been required to miss meal or rest periods, you are required to contact a manager, an HR business partner, or the integrity line.
Even though some of the policies explicitly stated their purpose was to prevent harassment and maintain privacy, the NLRB found that employees could reasonably construe the language to restrict potentially controversial or contentious discussions, including those protected under Section 7, out of fear that the employer would deem the discussions inconsistent with a “positive work environment.” The Board found that the policy pertaining to the use of cameras also violated Section 7 because some photographs and recordings in the workplace may be protected “if employees are acting in concert for their mutual aid and protection.”
The NLRB reached another similar decision in a 2016 case against Casino Pauma in Southern California. Among the rules it found faulty were:
The NLRB Administrative Law Judge took the position that these policies were overly broad and could reasonably be read to restrict the free exercise of employees’ rights under Section 7.
Who To Follow: The NLRB Or The EEOC?
Not only has the NLRB taken a position considered by some to be extreme, its viewpoint conflicts with the recommendations regarding civility training put forth by the Equal Employment Opportunity Commission (EEOC). In June 2016, the EEOC harassment task force issued a report suggesting employers implement workplace civility training to prevent occurrences of harassment. The task force cited various studies finding incivility to be a precursor to workplace harassment and that it may contribute to a hostile work environment.
However, this recommendation runs counter to the NLRB decisions invalidating numerous workplace courtesy and civility rules under its broad interpretation of Section 7. Given this conflict, the report recommends the EEOC and NLRB confer to jointly clarify and harmonize the interplay of the NLRA and federal EEO statutes. Unfortunately, until the agencies reconcile the discrepancies, employers must choose whether they will risk dealing with the NLRB by following the EEOC’s recommendations for preventing harassment, or stay away from workplace civility training and policies altogether.
Next Steps
Given the new tenant in the White House and the shifting composition of the NLRB, there may be a future swing in the Board’s view on workplace civility rules. The NLRB, normally a five-member board, currently has two vacant positions; President Trump nominated two conservative individuals to fill those open seats, and they will soon face a Senate vote. If these two selections are approved, the president will have an opportunity to shift the viewpoint of the Board to create a more even playing field. Once the vacant positions are filled, we may begin to see NLRB decisions that uphold reasonable civility rules.
In the meantime, however, there are some steps you can take to align your policies with the NLRB’s current position. You should review your policies to determine whether revisions are needed to minimize your risk of violating the NLRA while still promoting a lawful workplace. Start with policies that appear vague or overbroad enough that they could be viewed as prohibiting Section 7 activities. You should also keep an eye out for policies that specifically prohibit employees from criticizing your organization or require them to behave professionally in the workplace, as these policies could raise a red flag with the NLRB.
Because employment policies may still present legal concerns even after they are revised, it is always a good idea to discuss any proposed revisions with your legal counsel prior to implementation.
For more information, contact the author at CAlvarez@fisherphillips.com or 916.210.0403.
]]>Neither of these simple interpersonal exchanges costs a nickel yet they can be the best investment you make with your employees or co-workers.
According to one study, employers and supervisors who made it a point to genuinely recognize people’s work on a daily basis saw productivity rise by 37%. The value of being nice and genuinely interested in the lives of co-workers makes for a stronger team, better customer service and fewer friction costs.
These were observations recently shared by nationally recognized hospitality consultant Stephen Barth (HospitalityLawyer.com) at the annual meeting of the Maine Innkeepers Association. A leading authority in law for the hospitality industry, Barth has crafted a unique perspective on the employer-employee relationship through the lens of litigation and organizational leadership.
Team play makes for a better customer experience and a profitable outcome. For example, a hotel guest may have nothing but outstanding service from arrival (bell hop) and check-in (clerk) to a round of golf (starter) and dining (waitress), but a glob of hair found in the bathtub drain (maid) becomes the factor on which the guest may dwell. If one member of the team fails to perform, the team fails in its service objective. Treating every member of the team as an equally important member makes your chances for success just that much greater.
Failure to do so may result in more turnover and, worse, threats of litigation.
People’s feelings matter which makes hiring and management such a challenge. When hiring, you want to have people with a good attitude and an outward focus. You can generally train people to do tasks but it is much harder to train people to have a positive attitude. Barth said he’d take the candidate with a good attitude and low skills over a highly skilled but gloomy competitor.
Perhaps most important is demonstrated leadership by owners and supervisors who are consistently outwardly focused and supportive. “Good job!”, “How’s your daughter doing?”, “Great idea! Let’s see what we can do.” That is the nutrient that grows a positive culture.
Barth also cited a study of more than 200,000 employees about what employees need in order to be engaged, productive and committed. The vast majority said they wanted their employers to
The expectation is that employees want to be treated with respect and have their co-workers as committed as themselves to the success of the organization.
In addition to what should be common sense behaviors that benefit an organization, employers also are subject to a wide array of laws:
And then there are myriad state and local statutes.
How do you protect your business and get better at what you do? It is essential to have solid Employment Practices Liability insurance in place. This coverage will help defend you and your organization against allegations of wrong-doing. More to the point, a review of EPLI coverage will provide guidance to prevent such allegations from occurring and allow the organization to focus on sound hiring practices and the success of the organization’s objectives.
Originally published on ClarkInsurance.com
]]>It’s bad enough when one has to defend against fabricated allegations about racial slurs and name calling, let alone when it apparently, in fact, happened. Such a situation is a nightmare for an employer, and to state the obvious, should never have occurred. But never say that “it couldn’t happen in my company.”
How Could This Happen?
The conduct described in this case is reprehensible. But did it start somewhat innocently and escalate to something this terrible? Was this a decent company asleep at the wheel and not a throwback to a place found in the recent movie, “Django Unchained”?
We can only speculate, but according to the EEOC’s lawsuit, Contonius Gill and Robert Floyd, Jr., both African-American, worked as truck drivers for A.C. Widenhouse. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility’s general manager, (who was also his supervisor); the company’s dispatcher; several mechanics; and other truck drivers, all of whom are white. The comments and slurs included “n—–r,” “monkey” and “boy.” Gill testified that on one occasion he was approached by a coworker with a noose and was told, “This is for you. Do you want to hang from the family tree?” Gill further testified that he was asked by white employees if he wanted to be the “coon” in their “coon hunt.”
The other employee, Robert Floyd, testified that when he was hired in 2005, he was the only African-American working at the company. Floyd said the company’s general manager told him that he was the company’s “token black.” Floyd testified that on another occasion the general manager told him, “Don’t find a noose with your name on it,” and talked about having some of his “friends” visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company’s dispatcher and general manager, and Floyd complained to an owner of the company, but the harassment continued, according to testimony
Action Points
Absolutely nothing will get the EEOC’s attention faster than allegations of nooses, KKK markings or use of racial slurs like “coon.” The EEOC is actively looking for such cases to litigate so as to “send messages” to discourage bad behavior. They may not be too picky about their fact checking, so if you receive an EEOC charge, even if the claim seems patently frivolous, call counsel. The EEOC is especially interested in cases where they believe that the complained of behavior suggests systemic discrimination, which may broaden into a class action or company wide scrutiny.
Our advice? Stop bad behavior before it gets so bad. Everyone expresses outrage at the allegations in this type of case, but what kind of culture allowed things to get to that point?
Ask yourself: “What is human resource’s role or upper management’s in preventing this kind of problem?”
Does your company take seriously its Complaint, Non-Discrimination and No-Harassment policies? Do you regularly train employees and supervisors . . . or, just pay lip service to the idea? Now, ask these same questions about each of your sites.
Annually train supervisors about effective discipline and discharge. Many supervisors come up through the ranks and do not know how to deal with such conduct. Don’t focus solely on Non-Discrimination and No-Harassment obligations – instead, demand “professionalism.” Always promptly investigate even seemingly minor claims and respond to the claimant.
Finally, remember that lawsuits “walk into your workplace on two feet.” I am not focusing on legitimate claims. I am talking about fabricated or frivolous claims. There seems to be a self-selection process where the employees with the bogus discrimination claims file suits, and individuals with genuine grievances, simply get another job. Neither outcome is good.
So, in addition to maintaining a professional workplace where such behavior doesn’t occur, recognize the type of hire who may use such claims as a means of retaliation for some grievance, or who always assumes that any adverse action is due to discriminatory intent rather than their own performance.
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