Me Too? Is This A Good Time for a Company To Conduct Workplace Harassment Training?

By Kathleen Jennings (kjj@wimlaw.com)

Unless you are living under a rock or in a digitally untethered cabin in the woods, you are aware of the publicity concerning sexually inappropriate (and worse) behavior by Harvey Weinstein and Amazon Studios’ Roy Price. These revelations have been followed by the hashtags and social media posts of “me too” which scores of women have used to share their experience of sexual harassment and sexual assault.

In the face of this firestorm, what is a company to do? There are two main options: (1) embrace the moment and demonstrate commitment to a policy that the company will not tolerate sexual harassment in the workplace, or (2) ignore it and hope this whole issue blows over. While option #2 may be cheaper in the short term, it is highly unlikely that the issue of sexual harassment in the workplace is going to just “go away” any time soon. From a legal and practical standpoint, companies should be looking at option #1. The EEOC thinks so, too. According to Acting EEOC Chair Victoria Lipnic, “This is an opportunity in terms of what you do in house for compliance and really do the things that need to be done to address this topic.”

What kinds of things can and should a company do now to address the issue of harassment in the workplace?

Actually, the question should be: what is your company already doing to prevent and address harassment in the workplace? Because if your company has more than 15 employees, your company has an affirmative duty to prevent and address harassment, thanks to two Supreme Court cases decided in 1998. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), the U.S. Supreme Court imposed an unprecedented affirmative burden on all employers to prevent and address the issue of sexual harassment in the workplace. From that point forward, it became more important than ever for all employers to review their policies and procedures regarding harassment in the workplace.

In the Faragher and Ellerth cases, the Court established a framework for determining an employer’s liability for harassment by its supervisory employees:

  • First, the Court criticized the division of sexual harassment into the categories of “quid pro quo” and “hostile environment.”
  • The law now focuses on whether supervisory harassment results in a tangible employment action against allegedly harassed employees. A tangible employment action involves a significant change in employment status, such as hiring, firing, failing to promote, or reassigning to a position with significantly different responsibilities.
  • If there is a tangible employment action, the employer will be held strictly liable for the conduct of the harassing supervisor.
  • If the harassment by the supervisor does not result in a tangible employment action, though the employer may not be strictly liable for the supervisor’s conduct, the employer may be liable if the harassing conduct is severe and pervasive (this is what was typically referred to as a hostile environment case). In situations such as these, the employer may avoid liability through the affirmative defense.

This defense requires the employer to prove that:

  1. it took reasonable preventive and remedial steps against harassment, and
  2. the complaining employee did not utilize these measures to avoid the harm underlying the complaint.

This rule currently only applies to supervisory harassment. If the alleged harassment is committed by a co-worker, or other non-supervisory employee, then the Faragher/Ellerth framework does not apply. In cases involving harassment by a non-supervisor, an employer may be liable for harassment if it knew or should have known about the harassment and failed to take prompt, effective remedial action.

The following is a list of basic strategies to meet the affirmative burden and avoid liability. [If you are interested in a more detailed discussion of these strategies or how to handle issues of sexual harassment in the workplace, Wimberly Lawson has a publication available entitled “Strategies for Successfully Handling Sexual Harassment Complaints.” Please email me at kjj@wimlaw.com if you would like to purchase a copy.]

1.    A Written Policy Prohibiting Harassment.

2.    Dissemination of The Policy.

3.    A User-friendly Reporting Procedure.

4.    Promptly investigate.

5.    Take prompt and effective remedial action (and follow up) when necessary.

6.    Recordkeeping.

7.    Training. Supervisor and employee training continue to be of vital importance to employers seeking to avoid sexual harassment liability under Title VII.

Do not succumb to the mistaken belief that training and discussion of sexual harassment will only serve to stir up complaints. Employees are already inundated with news stories of sexual harassment on an almost daily basis. Additionally, savvy plaintiffs’ lawyers are using the media to stir up claims and generate business of their own. If your company does not make sufficient efforts to address the issue of sexual harassment in the workplace, your company will be an easy target for these lawyers.

Things a company can do right now:

  • Remind all employees that the company does not tolerate harassment in the workplace and that it has a procedure for them to use if they have any complaints about harassment in the workplace.
  • Talk to supervisors and managers about the issue of harassment in the workplace. Make sure they know what to do if they become aware of a complaint of harassment. Also make sure that they understand the company’s policy against harassment and complaint procedure so that they can answer any employee questions (or know where to send employees if they can’t answer a question.)
  • If you already have harassment prevention training scheduled at regular intervals, remind employees of that training and the dates it will be given.
  • If the company has not conducted any harassment training in over one year, it is a good time to think about scheduling some training in the near future.
  • If you have any questions about how to go about implementing any of these strategies, talk to qualified employment counsel.

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.

When the Big Boss is Accused of Sexual Harassment

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

One of the big stories in the news this week concerns accusations of sexual harassment (and worse) against the head of a Hollywood production company. Various sources claim that the allegations against this man have been an open secret for years. There is even a memo written by a company employee to company executives about the sexual harassment and the “toxic environment” it created. From what we can tell, the company did nothing until the allegations were made public in the media.

What should a company do if it receives a complaint of sexual harassment against a high-level executive? As in the case of any other complaint of sexual harassment in the workplace, it should not ignore it. Instead, it needs to conduct an investigation to determine if the complaint has any merit.

When the complaint concerns a high-level executive or the head of the company, it is best to retain a neutral person outside the company to conduct the investigation, preferably someone who is trained in doing this kind of investigation. An investigation by a company employee may be influenced by the concern about the impact of the investigation on his or her career at the company. The investigator should be able to conduct the investigation without pressure or limitations imposed by the accused executive or any other management employees on the investigator or potential witnesses. There should be a full and complete investigation of all of the facts. Based on that investigation, the company’s Board of Directors can make an informed decision whether discipline or other action against the executive is necessary. Ideally, the decision about whether to take action against the accused, and if so, what action to take, should be made with the assistance of counsel.

However the investigation comes out, the company also has a duty to protect the complainant and any participants in the investigation from retaliation by the accused executive and/or people acting directly on his/her behalf (we call this the “cat’s paw” theory of liability). One way to ensure this is to add an extra layer of review of any employment decisions made by the accused executive that affects the complainant and any participants in the investigation.

Alternatively, the company can do as the Hollywood production company appeared to do: pay off complainants and sweep the matter under the rug. We see how that turned out.

Pro tip: When conducting harassment prevention training, make sure that the company’s management and high-level executives participate in the training just like all other company supervisors and managers. Their presence at the training sessions demonstrates the company’s commitment to a workplace free of harassment.

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.

 

Does Your Workplace Need Active Shooter Training?

By Kathleen Jennings (kjj@wimlaw.com)

Most workplaces practice fire drills once or twice a year, even though they have never experienced a fire (and hope they never will). But how many workplaces practice a response to other crises, such as an active shooter?

If you run a search of the terms “active shooter training,” you will find that there are a number of companies that provide active shooter training to companies and individuals. It is also interesting to see how active shooter training has evolved. In the past, employees generally were taught to duck and hide from an active shooter. Now, some programs train employees to be more active; they should run from the scene, actively disrupt and confuse a shooter, or even try to physically take down a shooter. For example, the Department of Department of Homeland Security has recommended that federal workplaces adopt the training program “Run, Hide, Fight,” which it helped develop.

Demand for active shooter training generally increases after a highly publicized mass shooting. Realistically, does your workplace need this training? What is the risk that any of you will encounter an active shooter? Like the fire drill analogy above, you may never need the training, but is it better to make sure that all employees know what to do in the event of an active shooter?

It is also important to take steps to prevent an active shooter from putting your employees at risk. In fact, OSHA requires it. Although there are no specific OSHA standards for workplace violence, under OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.

Do your employees know what to do in the event of an active shooter? Even if you do not believe that active shooter training is necessary, at a minimum, you should have a written plan in place to deal with that type of crisis, and you should review the plan with employees periodically.

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.

 


 

It’s All Fun and Games Until That Meme Turns Up as a Deposition Exhibit

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

Everybody loves a good meme (and its animated cousin, the GIF), which is the perfect example of a picture being worth a thousand words. As an attorney who defends employers in litigation, however, one of my nightmare scenarios is seeing a racist/sexist/anti-immigrant/etc. meme posted or shared by a supervisor or manager being identified as an exhibit in that supervisor’s or manager’s deposition.

Just as social media posts can be used against plaintiffs in litigation, the same can be said for supervisors and managers. Supervisors and managers act for the company, so when one of them posts something on social media that can be construed as discriminatory, it reflects badly not just on that individual, but on the company as well. This means that a company needs to train supervisors and managers to understand that their speech at work and outside of work can put the company at risk of liability. And that speech encompasses verbal speech as well as social media posts, tweets, and emails. [Whether a supervisor or manager should be “friends” on social media with subordinate employees is an issue for a separate blog post].

And memes. Some people think nothing of sharing a funny meme that he or she has seen on someone else’s page. Even though the sharer did not write the text, by sharing it, he or she is communicating implicit approval of its content, unless the sharer writes something that shows disapproval. When controversial issues are discussed on social media, it seems like many people like and share memes that resonate with their feelings and beliefs. Some of these memes may say things that the liker or sharer would never dare say out loud. Once shared, however, the meme is out there and associated with the sharer.

Here is an example of how this can be used against a supervisor and the company: Supervisor Z has been accused by a subordinate female employee of sex discrimination. Supervisor Z and the company deny that discrimination has occurred. At some point, Supervisor Z shares a “funny” meme on social media about boobs. When that meme is printed out and shown to the supervisor in a law firm conference room during a deposition in a lawsuit alleging sex discrimination, it is not so funny anymore. It will be even less funny if it is a trial exhibit and there are women on the jury.

Pro tip: Supervisors and managers need to understand that their words and actions can support—or undermine—company policies, such as the company EEO policy. This concept should be regularly reinforced on meetings and training sessions.

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.

 

Speech and the Workplace, The “Take a Knee” Edition

By Kathleen Jennings (kjj@wimlaw.com)

We have addressed the issue of a private employer’s options in responding to employee speech in previous blogs, and the events of this past weekend make the issue even more salient. Putting politics aside, how easy is it for a private (meaning non-governmental) employer to terminate an employee for speech (or protest) in the workplace? Not that easy, unless the employer does not mind getting involved in litigation or arbitration.

Here is an analysis that a private employer should engage in before terminating any employee for speech or protest in the workplace:

  • Contract of Employment. Does the employee have a written contract of employment? (Virtually all professional sports players do). If so, what does the contract say about termination? What are the financial consequences of terminating the employee in breach of the contract?
  • Collective Bargaining Agreement. Is the employee covered by a collective bargaining agreement (CBA)? (NFL players are). What does CBA say about termination of employees? Most, if not all, CBA’s provide that bargaining unit employees can be terminated “for cause.” It is probable that the question of whether certain speech or protest is considered “cause” for termination ultimately will be decided by an arbitrator.
  • Content of the Speech. Is the employee engaging in speech or conduct that is protected by state or federal law? As we have discussed before, certain employee speech is protected by the National Labor Relations Act or federal anti-retaliation/whistleblower laws. Thus, terminating an employee who engages in protected speech likely will result in a charge and/or lawsuit.
  • Protected Classifications/Discrimination. Is the employee in a protected classification? If yes, have “similarly situated” employees who are not in a protected classification been treated differently? Just figuring out who is “similarly situated” is a complicated process.
  • The “Intangibles.”
    • How many employees are involved in the speech or protest? Is it realistic to terminate all of them?
    • When considering the termination of individual employees–what is the employee’s length of service? Disciplinary history? Performance history? If the matter goes to litigation or arbitration, an employee with a long employment history and little or no discipline and good performance is going to receive much more sympathy.
    • Is the employee a leader who is respected by other employees? If so, terminating this employee may adversely impact employee morale and productivity. Furthermore, employees who perceive that the employer is treating them or their co-workers “unfairly” may reach out to a third party, such as the EEOC or even a union.
    • Will there be publicity? If so, how will that reflect on the company?
    • Is there some other form of discipline, short of termination, that may be more appropriate?

In short, the decision to terminate any employee is not simple or easy, except maybe in those cases where the employee does something so egregious (i.e., theft, hitting another employee, selling drugs at work, sabotaging equipment, to name a few) that termination is warranted and even expected. In all other cases, it is important for an employer to examine a number of factors before making its decision.

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.

 

Does Your Company Know What to Do If ICE Shows Up at Your Door?

By Kathleen Jennings (kjj@wimlaw.com)

Deporting undocumented workers is a major agenda item for the current administration. In recent months, arrests by the U.S. Immigration and Customs Enforcement (ICE) have increased by about 40%, and the pool of targets considered priorities for deportation has greatly expanded.

So, what is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant? If the answer to that question is yes, then the company’s options are limited.

  • Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.
  • Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.

If there is no warrant, then the company has more options in responding.

  • Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.
  • If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.
  • If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.

[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

  • What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

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 has also handled criminal 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.

 

Will E-Verify Be Required Nationally?

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

On September 8, 2017, U.S. Congressman Lamar Smith (R-Texas) – whose 1996 bill created the pilot for the E-Verify system – introduced to Congress “The Legal Workforce Act” (H.R. 3711) which would require all U.S. employers to use E-Verify to check the work eligibility of new hires. Smith was joined in introducing the bill by co-authors Rep. Bob Goodlatte, R-Va., and Rep. Ken Calvert, R-Calif. The Legal Workforce Act would phase in the E-Verify requirement over a two-year period, starting with the largest employers. The agriculture industry would have an additional six months—or 30 months total—to come into compliance.

What is E-Verify? E-Verify is operated by the U.S. Citizenship and Immigration Services (USCIS) and checks the social security numbers of newly hired employees against Social Security Administration (SSA) and Department of Homeland Security (DHS) records to help ensure that they are genuinely eligible to work in the U.S. The program has a record of confirming 99.8 percent of work-eligible employees and has earned high customer satisfaction scores on the agency’s annual surveys, according to USCIS. Over 740,000 employers currently use it.

Currently, seven states in the South (Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Tennessee) and two in the West (Arizona and Utah) already require private employers to use E-Verify. Some employer groups, including the U. S. Chamber of Commerce and SHRM, support a federal E-Verify requirement because it will set a uniform national standard that would preempt differing state standards. Some agricultural groups are not as supportive of the measure.

As the bill makes its way through the legislative process, there are likely to be some changes and compromises. In final form, it may be passed as part of a more comprehensive immigration measure. We will provide further 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.