Thursday, July 20, 2017

That Critical First Response to Harassment Complaints: Stage 2

Last week, we wrote about the importance of “first responders” who receive complaints of workplace harassment, and provided tips on how they should prepare for and react to complaints.  This week, we continue to focus on the early stages of the complaint handling process, but turn to what should happen immediately after the complaint has been received.
Here are steps that should be taken promptly following the first contact with the complaining employee:
  • Create a complete written record of what you’ve heard or read.  As noted in last week’s post, it’s important to have a consistent way of recording complaints.  First responders should take extensive notes about what a complaining employee says during their first contact, and should also take the time to review and complete those notes immediately following the conversation.  If there is a form that needs to be filled out concerning the complaint, it should be completed as soon as possible. If a complaint comes in via an anonymous call, the recorded call should be preserved and a written summary created.  If a complaint is made in writing, the information it contains should be transferred to any form that the employer’s procedures call for, and the written complaint should be attached to that form.  The first responder’s goal should be to put as much information as possible in writing as quickly as possible, and to treat each complaint consistently.
  • Inform those who need to know (and nobody else).  Employers should have a procedure in place that establishes who will be informed of a complaint of harassment.  As a general rule, information about a complaint should be shared only with those who need to know in order for appropriate responsive action to be taken.  That may include in-house counsel, HR management staff, and certain members of upper management.  It does not necessarily include the complaining employee’s supervisors, or upper management not directly involved in complaint handling.  Complaints of harassment make for great gossip, and it’s important to limit the opportunities for gossip to spread.  The identity and role of each person informed of the complaint should be noted in documentation.
  • Assemble your resources.  The information provided by the complaining employee is important, but it is only one part of what an employer must consider in responding to alleged harassment.  Other employees may have relevant information.  The individual or individuals whose conduct is being complained about will almost certainly provide important information.  Managers and supervisors of the complaining employee and the alleged harasser may have relevant knowledge or information.  Personnel records of both the complaining employee and the alleged harasser can provide important historical information and may include relevant context. Paper records and electronic data may contain critical information and communications. Before beginning an investigation, all known resources should be identified and, in the case of records and data, secured. This may be a task for the first responder, or it may be the responsibility of HR or in-house counsel.
  • Plan the investigation.  Harassment complaint investigations may be lengthy and complex or short and simple.  It’s hard to predict exactly how the investigation will proceed when a complaint is only recently received.  Every investigation, however, should begin with a plan.  The plan may change as information comes in, and that’s fine, but first steps should be mapped out in advance and should be identified based on the particular facts and circumstances surrounding the complaint. 
  • Determine who needs to be updated, and how, as the investigation proceeds.  Upper management, in-house or outside counsel, or HR management may need or want to be updated while a complaint of harassment is investigated.  If updates are expected, determine in advance when and how they should occur. Complaining employees sometimes ask to be updated during an investigation.  If such updates are promised, they should occur as and when the complaining employee expects them.
  • Create accountability.  The law requires that employers take timely and appropriate responsive action when complaints of harassment are made.  Someone needs to be accountable for carrying out that legal mandate.  At the early stages of responding to a complaint, it’s important to create clear lines of authority and responsibility to ensure that what’s necessary gets done.
While these early steps are only part of what an employer must do when faced with a complaint of harassment, they can provide a sound foundation for the investigation, conclusion, and responsive action that follow.
For additional guidance on harassment investigations, we recommend the EEOC’s Enforcement Guidance, Employment Law Commentary newsletter, and this 2009 newsletter from CCH.
Posted by Judy Langevin

Monday, July 17, 2017

That is SO last week

Last week, the City of San Francisco joined other municipalities around the country that prohibit employers from asking applicants for wage history.  The  Board of Supervisors passed an ordinance that will go into effect in mid-2018. Pittsburgh, Philadelphia, and New York City also prohibit private employers from seeking salary history.  Massachusetts has a state-wide ban, and other states and municipalities are considering related legislation, which is intended to address the gender wage gap.

Discrimination

The EEOC has sued a New York Apparel company, alleging that it fired an employee recovering from childbirth in violation of Title VII. 

Advanced Home Care, Inc., a North Carolina non-profit, has been sued by the EEOC for disability discrimination based on its treatment of an employee with asthma.

Fox News highlighted potential applications for artificial intelligence to help reduce sexual harassment in the workplace.

Technology

Quartz launched a new series called Machines with Brains, which will explore what it means to be human in a world increasingly powered by robotic technologies and artificial intelligence.

Microsoft launched an app that it describes as a “talking camera for the blind.”

Researchers from major companies including Google and Microsoft have partnered with the ACLU in an effort to identify and highlight hidden bias in the mathematical models used in machine learning and AI.

Rainforest QA, a quality assurance service that tests websites and apps, manages its 60,000 employees entirely through algorithms.

In Other News

An administrative law judge ruled that Google does not need to turn over pay data requested by the Department of Labor as part of an audit of the company’s compliance with equal pay laws.

The New York Times reported on “flash organizations,” described as “ephemeral setups to execute a single, complex project in ways traditionally associated with corporations, nonprofit groups, or governments.”

The USCIS has released a revised Form I-9, again.

A federal court in North Carolina has conditionally certified a class of Uber drivers whose lawsuit seeks classification of drivers as employees under the FLSA. 

Thursday, July 13, 2017

That Critical First Response to Harassment Complaints: A Checklist

Employers don’t want workplace harassment to occur, but when it does they want to know. Harassment affects morale, distracts from productive work, and can do real damage to its victims.  It’s long settled that ignorance is not a defense to claims of harassment by managers and supervisors. When harassment occurs between equals, the employer may still be legally responsible if it knows or should know and fails to take timely, appropriate action in response.  So almost all employers have policies prohibiting harassment, and many have policies and procedures specifically designed to receive and investigate complaints.

Regardless of the formality of the complaint process, someone in the employer’s organization is the first responder—the initial recipient of the complaint.  That recipient may be an HR professional, in-house counsel, a manager, an owner, a board member, or even someone outside the organization.  Whoever it is, the recipient’s handling of the first contact from a complaining employee is of critical importance.  It reflects and conveys the employer’s attitude about harassment in the workplace.  It encourages (or discourages) the employee from providing complete and candid information. It marks the first step in the employer’s compliance with its legal responsibility to prevent and respond to harassment complaints.  Here are tips that can help shape and manage that critical first response.
  • Be prepared.  Everyone who might reasonably receive a complaint of harassment should have at basic training on how to respond.  Individuals named as complaint recipients in the employer’s harassment policy, or otherwise formally designated as a recipient, should be given written guidelines and instructions.
  • Be prepared, II.  First responders should never act surprised or flustered when they realize they are being told about harassment.  Their response should be calm, friendly, and matter of fact.
  • Be consistent.  Whatever an employer’s procedures for receiving and responding to a complaint of workplace harassment, they should be uniformly followed.  If, for example, the recipient is supposed to make a written record of complaints, the same information should be gathered every time and reduced to writing in the same way.  At the time of first contact, it’s impossible to know how serious or complex a complaint will be; first responders should never dismiss a complaint as unimportant or unworthy of full attention at this early stage.
  • Welcome the complaint and the complainer, but stay neutral.  An employer wants to know about harassment complaints, but must stay neutral until investigation of the complaint is completed.  First responders should always express appreciation for the complaining employee’s willingness to come forward, and may express the employer’s commitment to a workplace free of harassment, but should never take a position about the validity of the complaint.  It’s too early for that.
  • Be prepared for the “anonymous” complaint.  Sometimes, a complaining employee will ask that she or he remain anonymous, or will seek to control how the employer conducts an investigation.  Such expectations are unrealistic and complaining employees need to understand why. Fear of retaliation is usually the driving force behind requests for anonymity and requests to do or not do certain things in the investigation, so an important part of the first responder’s job is to explain that no retaliation will occur—even if the complaint can’t be corroborated. 
  • Promise only what can be delivered.  First responders should tell the complaining employee what will happen next and explain the investigation process, but should never promise a particular outcome. Nor should they promise that the investigation will proceed in a certain way or be completed by a certain time. The course, scope, and outcome of any harassment investigation depends on the facts and circumstances surrounding the complaint, and can’t be known when the complaint is made.
Posted by Judy Langevin

Monday, July 10, 2017

That is SO last week

Last week, the Eleventh U.S. Circuit Court of Appeals declined to rehear a Title VII sexual orientation discrimination case. The Court let stand a March 2017 ruling by a three-judge panel of the Eleventh Circuit that Title VII does not prohibit employers from discriminating based on gender presentation and sexual orientation. In Evans v. Georgia Regional Hospital, a hospital security guard alleged she was harassed and fired for being a lesbian and not conforming to the gender norms of a woman in appearance or behavior. Her attorneys at Lambda Legal plan to appeal to the U.S. Supreme Court. The Eleventh Circuit’s decision conflicts with the ground-breaking April 2017 decision of the Seventh Circuit in Hively v. Ivy Tech Community College that sexual-orientation bias is sex discrimination under Title VII. The Second Circuit has agreed to a full court rehearing of a case challenging that circuit’s precedent that Title VII does not protect gay and lesbian employees against discrimination.

Discrimination

A suit filed in late June accuses AT&T of age discrimination, alleging the company dismissed older workers as part of an effort to increase the technology skills of its workforce.

A column in The New York Times offered advice for when a coworker’s behavior seems discriminatory.

At a recent company event, employees of Tesla accused the company of ignoring or enabling sexual harassment and making discriminatory hiring decisions for years.

The EEOC sued a Tampa-based janitorial service for race discrimination, alleging the company instructed managers not to hire African-American applicants without special permission.

Technology

The Guardian asked whether sexual harassment in Silicon Valley has reached a "tipping point."

Recruiters are using geotechnology to target potential hires in the places where they live and work.

A Chicago startup is developing AI and chatbot technology to help employees manage their health insurance and healthcare services.

Microsoft is using data-collecting software—creatively titled Workplace Analytics—to measure employee productivity.

Wage and Hour

Efforts are underway in some states to lower the minimum wage.

Restaurant owners reacted to Minneapolis’ recent passage of a $15 minimum wage bill.

Harvard Business Review explained why it matters when workers are misclassified as contractors.

In Other News

Slate wrote about the Washington State Legislature’s recent passage of one of the most generous paid-leave laws in the country.

The Washington Post and  Bloomberg tackled summer dress codes, questioning what “appropriate” dress really means and whether men should be allowed to wear sandals to work.

A New York Times editorial highlighted the problem of stagnating incomes and rising income inequality.

HR Dive covered a recent Tenth Circuit Court of Appeal decision holding that Department of Labor regulations limiting tip pools are not valid.

Because efforts to repeal the Dodd-Frank Act have not been successful, companies may need to be prepared to report on the CEO-to-worker pay ratio mandated by the law.

Wednesday, July 5, 2017

That is SO last week

Since the last edition of That Is So Last Week on June 26, the Eighth Circuit Court of Appeals ruled that a Jimmy John’s franchise in the Twin Cities did not violate the organizing rights of six employees that it fired for publicly protesting the company’s sick leave policy. Following a failed effort in 2010 to unionize ten Jimmy John’s stores, pro-union workers were fired after they displayed posters that questioned food safety at Jimmy John’s to protest the company’s policy of not providing paid sick days. On Monday, the full Eighth Circuit held that communications in a labor dispute aren’t protected when they constitute a “sharp, public disparaging attack upon the quality of the company’s product and its business policies.” The Eighth Circuit’s ruling reversed prior decisions by the NLRB, a federal administrative law judge, and a three-judge panel of the Eighth Circuit, which had held that the workers’ organizing rights were violated.
Discrimination
Sensient Natural Ingredients LLC will pay up to $800,000, designate an internal EEO monitor, and revise its leave policies to settle charges that employees who took extended leaves of absence for disability-related care were discharged for exceeding the company’s restrictive leave policy or were required to return to work without accommodations.
Technology companies such as Google and Microsoft submitted an amicus brief urging the Second Circuit Court of Appeals to hold that Title VII protects against employment discrimination based on sexual orientation.
Janet Dhillon was nominated to chair the EEOC.
Technology
Engadget featured a biometric ring that can be used for everything from logging into your computer to keyless entry access at the office.
HR Dive reported on a clash of cultures after Walmart acquired e-commerce sites.
Venture capitalist Dave McClure resigned amid accusations of sexual harassment at the venture firm, 500 Startups, and publicly apologized for being “a creep.
In Other News
The Wage and Hour Division of the U.S. Department of Labor announced that it is reinstating opinion letters for wage and hour issues.
Los Angeles announced that it is seeking $1.45 million in restitution and penalties from Carl’s Jr. restaurants for that restaurant chain’s failure to pay minimum wage to L.A. employees.
The Department of Labor officially withdrew its defense of the Obama administration’s FLSA overtime rule and is starting a new rulemaking process.
In two different cases, NLRB administrative law judges found that employees who complained about workplace matters to co-workers didn’t engage in “concerted” activity and weren’t illegally fired.

Thursday, June 29, 2017

Minimum Wage Roundup—Mid-Year 2017

The Navigator is about to sail off on a mid-year break.  Before we leave for the long holiday weekend, here’s an update on minimum wage legislation around the country.  In our 2016 year-end review, we wrote:

There was a lot of activity at the state and local levels related to minimum wageTwenty-five states, cities, and counties approved minimum wage increases for 11.8 million workers in 2016. In the November elections, voters in Arizona, Colorado, Maine, and Washington approved ballot measures to increase their state’s minimum wages, while South Dakota voters rejected an attempt to lower the minimum wage for youth workers. California, Oregon, New York City, and Washington D.C. approved future increases.

 Since then, as the result of new initiatives and the implementation of prior initiatives, there’s been plenty of action. Seven states (Alaska, Florida, Missouri, Montana, New Jersey, Ohio, and South Dakota) automatically increased their rates based on the cost of living. Five states (Arizona, Arkansas, Colorado, Maine, and Washington) increased their minimum wage rates through previously approved ballot initiatives. Seven states (California, Connecticut, Hawaii, Massachusetts, Michigan, New York, and Vermont) increased minimum wage as a result of legislation passed in previous sessions. On July 1, the District of Columbia, Maryland, and Oregon will raise their minimum wage pursuant to previously enacted legislation.

In May, the Missouri legislature passed legislation specifically designed to preempt a St. Louis minimum wage ordinance. St. Louis’s $10 minimum wage took effect May 5 after the Missouri Supreme Court upheld the city’s right to implement an $11 minimum wage by 2018. If the governor does not veto it, the state legislation would preempt and nullify any local law establishing a minimum wage higher than Missouri’s minimum wage of $7.70 per hour.

Many cities in California have minimum wage ordinances that require hourly pay in excess of that required by federal or California state law.  California changes effective in 2017 are set out in this comprehensive chart from Paywizard.

Activity around the country is tracked in this compilation and this interactive wage tracker chart.

Mandatory minimum wage increase have been front and center in the past week as two studies with diverging results have claimed to demonstrate the effects of Seattle’s minimum wage law, which took effect three years ago. Stay tuned, because there’s more to come.  In Minnesota, Minneapolis and St. Paul are working on $15 minimum wage proposals, and they are not alone.   
                                                            ~
We’ll be back on Wednesday, July 5 with an expanded version of That Is So Last Week.  In the meantime, have a happy and safe holiday weekend.

Posted by Laura Bartlow

Monday, June 26, 2017

That is SO last week

Last week, a New York pizzeria restaurant group agreed to pay $50,000 to settle a national origin discrimination lawsuit. The EEOC alleged that the restaurant group discriminated against Hispanic employees by subjecting them to racial slurs and name calling based on their national origin.  The EEOC also asserted that the employer unlawfully required that the workers speak only English in the workplace.  In addition to the settlement payment, the restaurant group agreed to “extensive safeguards to prevent further discrimination” in a consent decree. 

Discrimination

The Missouri House passed legislation that would allow employers and landlords to legally discriminate against women who use birth control or have abortions.

The EEOC sued Texas-based Alas Resource Partners for age bias, alleging that an experienced foreman was fired because his supervisor preferred younger workers.

Technology

HR Dive examined science and technology tools that can help employers manage “people problems” in the workplace.

Forbes reported that Facebook, Alphabet, and Apple earned more than $1 million per U.S. worker in 2016.

HR Dive highlighted the importance of considering whether employer technology and software are ADA-compliant and accessible for employees with disabilities.

Wage and Hour

Insurance software startup Zenefits agreed to pay $3.4 million in unpaid overtime to 743 account executives and salespeople in Arizona and California that it allegedly misclassified as exempt from minimum wage and overtime.

Servers and restaurant owners in Minneapolis are considering suing for lost wages if the city passes a $15 minimum wage ordinance.

In Other News

A woman-focused coworking space in Seattle is integrating wellness services in the workspace, with the goal of making entrepreneurship more accessible for women.

Some employers are considering offering benefits to gig economy workers.

NPR asked how HR would handle the numerous vacancies remaining to be filled in the current administration.

US News & World Report looked at why fewer teens are taking summer jobs.

A shortage of H-2B visas may be harming small businesses who rely on seasonal staff from abroad.

Truck drivers at the Port of Los Angeles and Port of Long Beach went on strike to protest the terms of independent drivers’ work agreements.

The New York Times reported on the steps the current administration is taking to make major changes to federal labor policy.

Reuters published a special report on blue-collar workers in an Indiana manufacturing town who want better paying and more secure jobs, and believe the current administration will deliver them.