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.