Confidentiality Provisions in Settlement Agreements Under Fire

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the issues that has come to light in discussions of the recent allegations of harassment against high-profile corporate and entertainment figures is that of confidential settlement agreements. We have learned that in the past, women who have complained about harassment by these men have reached confidential settlements with the companies. In other words, the women received money and agreed to keep the amount and other terms of the settlement confidential. Now some are concerned that this enables serial harassers to continue their unacceptable conduct without warning to other employees or potential victims. Legislators in the states of Pennsylvania, New Jersey, and New York have introduced or are discussing the possibility of introducing legislation that would prevent the enforcement of such confidentiality provisions.

Confidentiality provisions in agreements that settle employment matters are very common. Employers generally insist on them if they are paying any significant amount of money to settle a claim or case. Companies prefer to keep significant monetary payments confidential to avoid encouraging other claimants to come forward also looking for money, and to avoid possible negative publicity. Companies often settle cases after analyzing the costs and risks of litigation, and not necessarily as an admission of guilt. Nevertheless, the payment of a large settlement may be perceived as an acknowledgement by the company that it did something wrong. This perception may not necessarily be true, but it will be bad for business.

The claimant also avoids public disclosure of her identity as a possible victim of bad behavior. And unlike a lottery winner, she may avoid hearing from “long lost relatives” who are eager to “reconnect” when they hear she has come into money.

On the flip side, however, the confidentiality provision effectively prevents the claimant from warning her co-workers to avoid, for example, going into the office of a company executive alone with the door locked.

How does the company balance its desire for confidentiality of a settlement with the prevention of future incidents of harassment by the harasser? Ideally, this is where the duty to take prompt, effective remedial action comes into play. An employer has a duty to take prompt, effective remedial action when it learns of harassment in the workplace. An effective remedial action is one that prevents the harassment from happening again, which is often judged in hindsight. The most effective way a company can prevent a harasser from harassing company employees again is to terminate the harasser’s employment. There are also less harsh but still effective ways for a company to make the point to the harasser that workplace harassment will not be tolerated: suspension, demotion, transfer, withholding of bonuses, sensitivity training, etc. [We could do an entire blog post just on this issue.] In this environment of heightened awareness about workplace harassment, however, the worst thing a company can do is to take no action when it has evidence that harassment has occurred.

We will continue to use confidentiality provisions when appropriate to the client and circumstances. We will also continue to monitor any new developments in this area.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Don’t Let Harassment Avoidance Turn Into Sex Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

Sexual harassment is still very much in the news, and discussion of this issue is not likely to end anytime soon. Today, we learned of another high-profile man who has been terminated from his job because of sexual harassment in the workplace. Not surprisingly, there is concern among some men that they will be unfairly targeted. Their solution: they will never, ever be alone with a woman at work. While this may be a creative way to prevent any “he said/she said” situations, it can also create another legal problem: sex discrimination. If this avoidance of female employees prevents those female employees from having the same access to management male employees, and also results in fewer opportunities for advancement for those female employees, then there could be grounds for those female employees to claim they are being discriminated against on the basis of sex. When a male manager refuses to have a meal alone with a female employee, or he refuses to travel on business with any female employees, but he does not hesitate to engage in those activities with male employees, that’s discrimination. Sorry guys, this is not a good solution.

Employees do fabricate complaints of harassment; they may be motivated by money, a desire to prevent termination of their employment, or malice against a particular supervisor or manager. Nevertheless, if a manager is afraid he will be accused of sexual harassment if he is ever alone with a female employee, this is an indication that there is a problem with that individual or the company’s culture.

For years, we have been teaching managers and supervisors how to make themselves “targets out of range.” In other words, do not engage in the kind of behavior in the workplace that can be used against you. As a general rule, the guy who is always telling dirty jokes is more likely to be accused of harassment than the guy who does not. Here’s a scenario: “Well, I did hear him tell some really off-color jokes, so it would not surprise me if he made that nasty comment about Mary’s breasts.” Don’t be that guy.

And don’t be that guy who refuses to be alone with any female employees. There is a middle ground: treat everyone with respect.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

OSHA Delays Electronic Reporting Yet Again

By Kathleen Jennings (kjj@wimlaw.com)

In a notice published in the Federal Register last week, OSHA announced that the submission deadline for calendar year 2016 data on Form 300A under the rule entitled Improve Tracking of Workplace Injuries and Illnesses has been delayed until December 15, 2017, instead of December 1. According to OSHA, this delay will allow affected entities sufficient time to familiarize themselves with the electronic reporting system, which was not made available until August 1, 2017. OSHA has determined that the additional two-week delay to December 15, 2017 will help the Agency avoid further delays by ensuring that its electronic reporting system functions properly.

OSHA also states that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule and to seek comment on those provisions in that separate proposal; this final rule only delays the compliance date to submit employers’ 2016 Form 300A data. The separate rulemaking will afford OSHA the time necessary to give full reconsideration to substantive issues concerning the May 6, 2016, final rule. However, it gave no indication of which parts of the final rule it intends to change.

As we discussed in a previous post, the following employers must electronically submit information to OSHA by whatever deadline OSHA finally settles upon:

•Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.

•Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually. These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

We recommend that those employers be prepared for some form of electronic reporting. We will continue to provide updates on this issue.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Have Harvey Weinstein and Kevin Spacey Taken All the Fun Out of Company Holiday Parties This Year?

By Kathleen Jennings (kjj@wimlaw.com)

I saw an article recently wherein the author was lamenting how company holiday parties are not going to be any fun this year due to the heightened scrutiny toward sexual harassment caused by the accusations against Weinstein, Spacey, and other high-profile figures. As an employment attorney, my first thought was that this may be a good thing. I suppose not everyone may agree.

Let’s make one thing clear: like it or not, the company holiday party is an extension of the workplace, and therefore, the company could be liable for any actionable harassment that occurs at the holiday party or any other company function, even when it does not take place on company premises. The company wants its employees to have fun—but not so much fun that complaints of sexual harassment become a huge hangover for the company.

Keep in mind also that the issue of sexual harassment is on a lot of people’s minds and folks are talking about what kind of behavior is and is not appropriate. The best advice for all employees, but especially supervisors and managers: Don’t do anything that would make you a target of a sexual harassment claim.

Some banned behavior should be obvious:

  • Don’t grab, grope, or proposition other employees.
  • Don’t start telling a lot of dirty jokes. It’s a party, not a comedy show.
  • Don’t make comments on employees’ body parts. Yes, you can tell your co-worker that she looks lovely in her party dress, but you don’t need to tell her that she has sublimely sexy legs.

The ingestion of alcohol tends to decrease inhibitions. Excessive ingestion of alcohol can eliminate those inhibitions altogether and lead to all sorts of problems. Because of this and the desire to minimize employee drinking and driving, some companies have stopped serving alcohol at company functions, or they limit the number of adult beverages employees may imbibe at company functions.

So what does this mean for the party atmosphere? Should everyone be afraid to say or do anything for fear of a sexual harassment complaint? Of course not. Respect one another and have fun—but not too much fun!

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

School’s Out? Tax Break for Tuition Reimbursement May End

By Kathleen J. Jennings (kjj@wimlaw.com)

Does your company offer tuition reimbursement as a benefit to employees? Tuition reimbursement can be the kind of benefit that is a win-win for the employer and the employee: the employee receives money to help further his or her education and enhance skills, and the employer receives a better educated, more skilled, and possibly even more loyal employee. As such, many employers consider a tuition reimbursement program to be a valuable tool in attracting and retaining quality employees.

There is also an incentive under the current tax law for tuition reimbursement: current tax law lets employers reimburse employees up to $5,250 per year for educational course work at the undergraduate and graduate level. The reimbursement is excluded from the workers’ taxable income.

However, the current draft tax bill, named the Tax Cuts and Jobs Act, now being considered by the House Ways and Means Committee, intends to end this tax break. This would mean that any tuition reimbursement provided by an employer would be included in the employee’s income for tax purposes. Employer groups are concerned that this added tax liability may deter some employees from taking classes. To express their displeasure at this proposed change, a coalition of 83 companies, associations, and institutions recently sent a letter to Ways and Means Committee Chairman Kevin Brady (R-Texas) and ranking member Rep. Richard Neal (D-Mass.) asking the lawmakers to amend the tax proposal not only to maintain the tuition reimbursement tax break, but to expand the $5,250 limit.

If your company currently offers a tuition reimbursement program, you will need to watch this tax bill carefully. We will provide updates as necessary.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The Workflex in the 21st Century Act: A Federal Paid Leave Plan

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, House Republicans introduced the Workflex in the 21st Century Act (H.R. 4219) as a new approach to work-life balance. This Bill would exempt employers from state and local paid leave obligations if they give workers a certain amount of general paid leave that can be used for medical, family, bereavement, vacation, and other reasons. It would also relieve participating federal contractors from existing paid leave requirements. The amount of leave required would vary from 12 to 20 days a year, including paid holidays, based on the business’s size and the time the worker has been on the job. Note that businesses seeking the safe harbor under this Bill would also have to offer at least one flexible work arrangement, like telecommuting, compressed schedules, and predictable or flexible schedules. Full-time and part-time workers would be eligible for the paid leave and flexible work arrangement benefits.

The Society for Human Resource Management (SHRM), helped design the legislation and is a strong supporter of it, as are employer groups. Supporters of this measure assert that this law would relieve employers from the burden of complying with a growing number of state and local laws that may require them to provide different amounts of paid leave to employees. Critics claim that this measure would give employees less leave time and less flexibility because the measure gives employers too much power to restrict when and how workers use their leave time.

You can view the Fact Sheet prepared by SHRM here. We’ll keep an eye on this legislation and provide updates as necessary.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

A Not So Special Snowflake

By Kathleen J. Jennings (kjj@wimlaw.com)

With all this talk about sexual harassment in the news, it is nice to find out that there are some things that you can call someone at work without being liable for harassment. This week, we learned that the Seventh Circuit Court of Appeals does not consider calling a co-worker a “snowflake” to be actionable harassment. Actually, the white custodian in question was called a “dumb, stupid snowflake,” which is mean, but still not actionable harassment. (Fellers v. Brennan, 7th Cir., No. 17-1176, unpublished, summary judgment affirmed 10/24/17).

The Seventh Circuit further held that the plaintiff’s other allegations, which also included being called a “dumb, stupid f**king asshole white boy,” weren’t severe or pervasive enough to sustain a harassment claim under Title VII of the 1964 Civil Rights Act. In its decision, the Court noted that the plaintiff wasn’t physically threatened, and the alleged conduct wasn’t frequent.

While these types of comments, used infrequently, may not rise to the level of actionable harassment, that does not mean that an employer should just let them go. The first step in combatting harassment in the workplace and preventing lawsuits like this one is to encourage employees to respect one another. In fact, this month, the EEOC launched a new employer training program aimed at creating respectful workplaces. The EEOC claims that the training program focuses on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace. The program is customizable for different types of workplaces and includes a section for reviewing employers’ own harassment prevention policies and procedures. There are two different training programs: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees).

Pro tip: Some harassment prevention is just common sense: no supervisor or manager should tolerate an employee calling another employee disparaging names, or “dumb” or “stupid.” That’s the time to remind employees that “we don’t treat each other like that around here.”

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.