Harassment Policies & Posters Not Enough to Avoid Liability for Supervisor Sexual Harassment

Written Harassment Policy and Posters Not Enough to Avoid Liability for Supervisor Sexual Harassment

Most employers publish anti-harassment policies, defining prohibited behavior, and providing multiple avenues for reporting violations. Some employers with multiple locations also post notice of the policy in their premises, and provide a centralized reporting resource at company headquarters. As demonstrated in a Seventh Circuit Court of Appeals decision last week, these measures alone will not shelter employers from liability for sexual harassment claims.

In EEOC v. Mgmt. Hospitality of Racine Inc., the EEOC sued an IHOP franchisee based on alleged sexually harassing behavior engaged in by an assistant manager at one of its locations. In response, the employer pled the Faragher/Ellerth affirmative defense to supervisor sexual harassment claims, contending that it had in place an effective anti-harassment procedure that the plaintiffs failed to use. Specifically, the employer contended that the poster contained a hotline number for reporting harassment claims that the plaintiffs never called.

The Seventh Circuit rejected this defense, affirming a jury verdict for the plaintiffs. While acknowledging the harassment policy and poster, the court stated that these steps are not enough for an employer to demonstrate an effective anti-harassment program. In this case, the plaintiffs had complained to several of their locations' managers, who ignored the complaints. The poster did not provide an effective alternative means for notifying managers of harassment violations. It contained only a telephone number and not an actual contact person. Moreover, the Seventh Circuit opined that the poster should have disclosed contact information for the EEOC.

Employers cannot remove the responsibility from local management for receiving and dealing with discrimination and harassment complaints by setting up a centralized hotline number. Even if the employees fail to take advantage of the hotline, their reporting complaints to local management are enough to place the employer on legal notice of the situation. All levels of management should be trained on what steps to take once any employee reports possible harassing, discriminatory or retaliatory conduct.

ParkerPoe, EmployNews, Issue 653

How to Eliminate 50% of All Hiring Mistakes

How to Eliminate 50% of All Hiring Mistakes in 30 Minutes

How to Eliminate 50% of All Hiring Mistakes in 30 Minutes

September 03, 2013

More hiring errors are made in the first few minutes of an interview than at any other time.

If you’re so inclined, you might want to check out this report in Personal Psychology, “The Structured Employment Interview: Narrative and Quantitative Review of the Research Literature.” The study reviewed all of the literature regarding the predictability of the interview, coming to the following basic conclusions:

• A structured interview is more effective than winging it, overvaluing first impressions, box checking skills, asking brain teasers, or trusting your gut.
• Defining the work that needs to be done is more important that a laundry list of skills and experiences.
• Specific guidance is required to convert the candidate's answers into an accurate assessment. Yes/no voting, informal discussions, or judging someone on feelings, intuition or emotions are all ineffective.

Whether your company has an interviewing system like this or not, most hiring errors can be simply eliminated by controlling the tendency to make instant judgments about candidates based on their first impressions.

Despite the fact that there is no research showing any correlation between on-the-job performance and first impressions, many people remain unconvinced. If you’ve ever met or hired a person who makes a good first impression and is not a top performer, you have some proof of its inability to predict performance. If you’ve ever met or hired someone who doesn’t make a good first impression and is a top performer, you have all the proof you need. While a sample of two is insufficient to make the no correlation claim, it does suggest that controlling the impact of first impressions can increase the accuracy of the interview. It also can help when meeting anyone for the first time, whether at a business meeting, party, or first date.

The problem with first impressions is that those who make good ones are given the benefit of the doubt regarding competency. Those who are quiet, temporarily nervous, not natural interviewers or whose appearance is not up to expectations, are instantly assumed incompetent. The balance of the interview is then used to gather evidence to prove these initial false conclusions, or the meeting is cut short. The following tips will help minimize these types of self-induced hiring errors.

10 Simple Ideas on How to Minimize the Impact of First Impressions on Decision-making

1. Wait 30 Minutes. Force yourself to delay any possible yes or no decision until you review the person’s work-history in-depth. As part of this look for the Achiever Pattern indicating the candidate is in the top 25% of his or her peer group.
2. Do the Opposite of Your Natural Response. Note your initial reaction to the person and then reverse your normal response. If positive, become more cynical, seeking information where the person has under-performed. When negative, assume the person is fully-competent and seek out facts to prove this.
3. Treat the Person as a Consultant. People who are considered experts in their field like doctors, lawyers and $500 per hour consultants, are treated with respect and assumed to be competent. Treat all candidates this way, regardless of how they look.
4. Conduct a Panel Interview. Since they’re less personal and more business-like, a well-organized panel interview naturally minimizes the impact of first impressions.
5. Conduct a Phone Screen Before the Onsite Interview. First impressions have less impact when the interviewer has already had a personal conversation with the candidate. It’s even better if the candidate has accomplished something important related to real job requirements.
6. Ask More Questions About Team Skills. Ask everyone what teams they’ve been assigned to, how they got assigned to them, and how successful they were. If these teams are growing in size and importance, you’ll know if the person’s success is attributed to first impressions or leadership ability.
7. Listen to the Judge. Collect all of the required evidence before making any yes/no decision. Once a decision is made, the rest of the interview is used to collect information to validate it.
8. Determine if First Impressions Helped or Hindered Job Performance. Rather than being seduced by first impressions, seek out evidence to determine how it affected job performance. If first impressions are useful predictors, those with good ones should be better performers than everyone else.
9. Measure First Impression at the End of the Interview. At the end of the interview, evaluate the candidate’s first impression objectively, when you’re not affected by it. Then compare this to your initial reaction to the candidate. You'll soon know what triggers your first impression bias and, as a result, be able to more easily control it.
10. Systemize It Out. It’s hard to fight human nature. While all of the above steps will help, creating a companywide system that ensures they’re all followed by everyone all of the time is essential.

Allowing first impressions to bias hiring decisions results in two classic hiring blunders. The first, hiring people who make great first impressions, but are not competent. The second, not hiring top performers who are temporarily nervous, or don’t meet your expectations of friendliness and appearance. You owe it to yourself, your company and everyone looking for a job to overcome the simplistic idea of deciding who’s good or bad on superficialities. All it takes is 30 minutes.

___________________________________________

Lou Adler (@LouA) is the CEO of The Adler Group, a full-service talent acquisition consulting firm

NLRB-Facebook

We haven't seen a lot of Facebook firing cases coming out of the National Labor Relations Board ("NLRB") recently, but on April 3, 2013, the NLRB's General Counsel released an advice memorandum that discusses one such case. In that case, the charging party worked as a hostess at a bar/restaurant called Character's Pub. After new owners took over, the transition did not go well. Two servers were terminated; another staff member quit; and others were upset over a new rule that servers were prohibited from discussing the menu with cook staff and could only discuss menu issues directly with the head chef.

Meanwhile, the employees had a private group Facebook page where they "talked" about work. After the new owners took over, complaints on the private page increased. A few days before the Charging Party was fired, she posted, "I just want to cry right now. Depressing...no regulars, no staff, no fun!! I miss everyone. I didn't think they'd f*** it up this badly!!!"

When the employee got to work a few days later, the owners of the restaurant met her outside the restaurant. They told her, "We saw the Facebook page," and terminated her employment. The employee then brought an unfair labor practice charge alleging the comments on the private group Facebook page were protected concerted activity under the National Labor Relations Act (NLRA). The charge was submitted to the General's Counsel office for advice.

The General Counsel found that the posts were protected because:

• The employee complained about the terms and conditions of her work;
• She directed the complaints to a group of employees; and
• The complaints were "part of their continuing discussion of shared workplace concerns revolving around changes in the employee's terms and conditions of employment caused by the new ownership."

While perhaps there aren't any particularly new or unusual facts in this case, this decision confirms that the NLRB is taking a consistent line - when an employee is terminated for complaining about management or changes in the workplace and the complaints are made to other employees who respond in some way - the NLRB will find the social media posts to be protected and the termination unlawful. The case is also a good reminder that the NLRB is still focused on social media discipline and discharge cases and that employers need to be careful when taking action against an employee based on social media posts.

Perhaps more importantly, while the case doesn't explain how the employer happened to see the posts, since they were on a private group page, the case serves as another reminder that making employment decisions based on information on a private site is extremely risky. There also could have been privacy implications caused by the employer's viewing of the posts.

networkedlawyers.com
Ceridian

A Reminder to Avoid Prying Into Private Group Facebook Pages

We haven't seen a lot of Facebook firing cases coming out of the National Labor Relations Board ("NLRB") recently, but on April 3, 2013, the NLRB's General Counsel released an advice memorandum that discusses one such case.   In that case, the charging party worked as a hostess at a bar/restaurant called Character's Pub. After new owners took over, the transition did not go well. Two servers were terminated; another staff member quit; and others were upset over a new rule that servers were prohibited from discussing the menu with cook staff and could only discuss menu issues directly with the head chef.   Meanwhile, the employees had a private group Facebook page where they "talked" about work. After the new owners took over, complaints on the private page increased. A few days before the Charging Party was fired, she posted, "I just want to cry right now. Depressing...no regulars, no staff, no fun!! I miss everyone. I didn't think they'd f*** it up this badly!!!" When the employee got to work a few days later, the owners of the restaurant met her outside the restaurant. They told her, "We saw the Facebook page," and terminated her employment. The employee then brought an unfair labor practice charge alleging the comments on the private group Facebook page were protected concerted activity under the National Labor Relations Act (NLRA). The charge was submitted to the General's Counsel office for advice. The General Counsel found that the posts were protected because: The employee complained about the terms and conditions of her work; She directed the complaints to a group of employees; and The complaints were "part of their continuing discussion of shared workplace concerns revolving around changes in the employee's terms and conditions of employment caused by the new ownership." While perhaps there aren't any particularly new or unusual facts in this case, this decision confirms that the NLRB is taking a consistent line - when an employee is terminated for complaining about management or changes in the workplace and the complaints are made to other employees who respond in some way - the NLRB will find the social media posts to be protected and the termination unlawful. The case is also a good reminder that the NLRB is still focused on social media discipline and discharge cases and that employers need to be careful when taking action against an employee based on social media posts. Perhaps more importantly, while the case doesn't explain how the employer happened to see the posts, since they were on a private group page, the case serves as another reminder that making employment decisions based on information on a private site is extremely risky. There also could have been privacy implications caused by the employer's viewing of the posts. Ceridian, 4/25/2013 networkedlawyers.com For additional info regarding hiring, promotions and terminations based on Facebook or other social media, please contact: The Whitford Group, 704 298-2115 phone, 704 772-0735 fax or TheWhitfordGroup@gmail.com

Supervisor Violated Privacy Rights by Disclosing Worker's Mental Disability

Human resources managers know better than to disclose private medical information about employees. Supervisors may not.

In a recent California appellate court case titled Ignat v. Yum! Brands, Inc., the company learned what legal misfortunes are in store when a supervisor does not understand workplace privacy. Melissa Ingat worked for Yum! Brands, the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC.

Yum employed Ignat in its Real Estate Title Department. Ms. Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ms. Ignat to miss work. Apparently her co-workers did not know she was bipolar. But that changed when a supervisor gossiped about her condition during one leave of absence.

After that, Ms. Ignat's coworkers allegedly avoided and shunned her. The employee filed suit against Yum! Brands and the supervisor, for "invasion of privacy by public disclosure of private facts." The company denied that the supervisor had discussed the employee's mental illness, and claimed that the employee herself had disclosed her condition to some of her co-workers.

The trial court granted summary judgment in favor of Yum! on a technicality. It ruled that the legal claim for invasion of privacy by public disclosure of private facts required that the disclosure be made in writing, not verbally.

On appeal, the court reversed the ruling, finding that the law does not require that the disclosure be in writing. A claim for invasion of privacy by disclosure of private facts includes the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.

The legal claim has its origins in Roaring Twenties Hollywood. In a 1931 case titled Melvin v. Reid, a reformed prostitute who had married and led a respectable life for some years became the subject of a 1925 silent movie, "The Red Kimono," closely based on the lurid details of her former life. Although an actress played her character, the film used her real name. Inexplicably, it appears that the filmmakers also went out of their way to reveal her married name. She sued for invasion of privacy and other causes of action.

n that case, the court ruled that the right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not by word of mouth. In the Yum! case, the court rejected the restriction that the legal claim cannot be raised where the revelation of private facts is made verbally.

Accordingly, the claim against Yum! and its supervisor based on verbal comments about the mental disability could proceed. Workplace Privacy Disclosure of private facts is not the only way an employer might violate an employee's right to privacy. Legal analysts note that privacy interests generally fall into two categories: (1) "Informational privacy" which precludes disclosing sensitive and confidential information; and (2) "Autonomy privacy" which gives employees the right to making intimate personal decisions or conducting personal activities without observation or interference.

Invasion of privacy claims are often seen in the following circumstances, among others: • Disclosure of medical information. • Suspicionless drug tests, except pre-hire exams and certain random drug tests. • Disclosure of reasons for termination to those not privileged to know. • Monitoring computer use or emails, video surveillance, secret audio recordings, where there is a reasonable expectation of privacy. • Searches of employees and their property, with exceptions. • Unreasonably intrusive investigations.

Before intruding into any of these areas, a company should consult with legal counsel to ensure that it is lawful. Medical information and other sensitive data about employee should be stored in a secured location with limited access.

Exercise control and care when disclosing information to company representatives for a variety of legitimate business reasons, including accommodations.

Fundamentally, employers should train supervisors to refrain from disclosing confidential information about employees.

Source: Ceridian, 4/18/2013

For additional information contact The Whitford Group, 704 298-2115 phone, 704 772-0735 fax or TheWhitfordGroup@gmail.com

Employment Law You May Be Breaking

How you pay your employees is governed by federal law. Violating it is easy, so be careful. Here are the questions: If an exempt employee had to go to the doctor and missed an hour to three hours of work, can an employer dock pay? For example, a pregnant employee had an appointment and missed two hours of work. Can I dock her for two hours? Regardless of the circumstance, can an employer dock a couple of hours of pay at all for any reason?These are very common conundrums for employers. The short answer is no. Docking pay from an exempt employee is illegal. There is a law titled the Fair Labor Standards Act (FLSA). If an employee is subject to this law (non-exempt), when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are not subject to the law (exempt), they aren't eligible for overtime, but there are other rules that come with, like no docking pay. This means that no matter how much it annoys you, if you have an exempt employee who takes off two hours early to do anything--doctor's appointment, soccer tournament, just plain bored and wanted to go home--you cannot dock her pay. It's helpful to think of this in terms of a "touch the wall" rule. That is, if your employee shows up for work, even if it's just for 15 minutes, you must pay for the entire day. (In the case of remote workers, if they so much as log onto their computers, call on one customer, or do any anything work related, that counts as touching the wall.) You can discipline, fire, demote, yell at, or dock vacation time. But, you may not dock pay. And if you do dock pay? You've just made that person non-exempt. Which means you not only owe overtime going forward, you owe it going backwards. So your attempt to save $50 by docking two hours pay, could mean you'll be out thousands in back overtime pay. Now, not only pay docking violations occur all the time, but regular violations occur where people are labeled exempt when they really should be non-exempt. And it's not necessarily easy to tell where people should be. If it's not abundantly clear to you, categorize someone as non-exempt and pay by the hour. What makes this extra complicated is that the FLSA hasn't been adequately updated to reflect today's knowledge workforce. Here are some general guidelines for determining exempt status. Consult the FLSA website for specific questions. In order to be considered an exempt employee, employees have to meet several qualifications. They must be paid a minimum of $23,600 per year, receive an identical paycheck each week (bonuses and commissions can be added on top of this, but you can't pay someone less), and perform "exempt" job duties. For instance: Manager: If they supervise two or more employees, and managing these people is a big part of the job description, and have hire/fire authority (or at least strong input) over these people, they count under a manager exemption. Just slapping a "manager" title on someone does not make them exempt. If, for instance, if the bulk of a shift manager's job is to help customers, stock shelves, keep the store tidy, and run a cash register, but this person is also responsible for seeing that the other employees get their daily breaks, the person should be classified as non-exempt, and eligible for overtime. Professional: Some of these are easy to classify. Doctors, registered nurses (but not other nursing staff), lawyers, accountants (but not accounts payable/receivable people), and almost everyone making more than $100,000 per year are considered exempt. People who have considerable professional discretion are also exempt. That is, an analyst who works independently can be exempt. Most creative workers are also considered exempt professional staff. Administrative Professionals: This sounds awfully similar to "admin" roles, which are decidedly non-exempt. These are really people who have a big impact on the business, work independently and make decisions on their own. The person who organizes your schedule, answers your phone, and orders office supplies does not count under this exemption. These are people who work in things like finance, HR, quality assurance, IT (although IT has its own exceptions), public relations, and other things that keep the business going but don't necessarily manage others. Outside Sales: These people call on customers and make sales. If they are sitting inside your office making phone calls, they are considered inside sales and are non-exempt. Pretty much everyone else needs to be paid by the hour. Which means, that if your accounts payable clerk checks her email at home, she needs to record that time on her time sheet and be paid for it. It also means that even if you don't authorize overtime, if the employee works it, you must pay him. You can fire him after paying it, but you must pay. Source: Ceridian, 4/18/2013 Please contact The Whitford Group for additional information regarding wage and hour laws or for a comprehensive review of your employee's exempt/non-exempt status. 704 298-2115 Phone 704 772-0735 Fax TheWhitfordGroup@gmail.com

Corporate Policies vs. Sensible Employment Decisions

Don’t Let Corporate Policies Override Sensible Employment Decisions 2/4/2013 By Bill Leonard Well-crafted employment policies are a good thing: They inform employees of expected and appropriate behavior and help employers deal with workplace situations consistently and fairly. However, sometimes employers can find themselves in murky waters or create problems by adhering to a policy too strictly, especially in situations where employees run afoul of a workplace rule by following their conscience or trying to act ethically. Take, for example, a recent foiled robbery attempt at an AutoZone store in Yorktown, Va. Devin McLean, a 23-year-old employee, was fired at the end of November 2012 after he forced an armed robber to flee. During the holdup attempt, McLean ran out the back door when the robber brandished a weapon and forced the store’s workers into a restroom. McLean retrieved a pistol from his truck, then reentered the store and confronted the suspect, who quickly fled the scene. Managers at AutoZone’s corporate office reviewed the incident, and, two days after McLean thwarted the robbery attempt, they discharged him for violating the company’s strict no-weapons policy. AutoZone’s decision to fire McLean drew harsh criticism nationwide and created a public-relations crisis for AutoZone. After dismissing him, AutoZone released a brief statement, saying company officials had considered his case carefully but, ultimately, decided to let McLean go because, while no one was injured in the incident, other attempts to stop robberies at other AutoZone locations had resulted in injuries to customers and employees. Look Beyond ‘Zero Tolerance’ The situation has generated discussion among HR experts and business leaders about firing employees who may have done the right thing but violated corporate policy. The AutoZone case and similar examples demonstrate a basic point that, no matter how well-crafted a policy may be, employers simply can’t identify or envision every possible scenario or mitigating circumstance that can lead to a policy violation. “No matter how well-meaning a policy may be, it’s impossible to create a policy that addresses every possible situation,” said Lorene Schaefer, Esq., a mediator and arbitrator at OneMediation in Atlanta. “Zero-tolerance policies leave no wiggle room and can create situations that just don’t turn out well for anyone involved.” Schaefer says that providing leeway in a policy for what she called “the governor’s pardon” is a good idea. Still, the business must have a strong and fair review policy in place that is consistent and that treats all employees equally. “Companies hire and pay executives and managers to exercise their judgment and to make sound business decisions,” Schaefer said. “And the decision to fire someone who may have acted with good intent is clearly a business decision. So why wouldn’t a company entrust their leaders to make these decisions, instead of tying their hands by creating policies that don’t provide any flexibility?” Although AutoZone officials stated they had a strict no-weapons policy in their stores, the review process that led to McLean’s termination is unclear. Sources for this article chose to speak about best practices in general and weren’t referring to the AutoZone case when expressing their opinions. “I don’t know the particulars of the AutoZone case at all, but I do know that the best practice when writing a policy is to include flexible language,” said Judith Lindenberger, president of the Lindenberger Group, an HR consulting firm in Titusville, N.J. Lindenberger, who has helped develop hundreds of employment policies during her HR-management career, said the best approach is to use language that gives employers options. Words that imply that choices can be made in certain situations are very helpful. For example, conditional words like “may” or “could” work well, she said, and can avoid tying an employer’s hands. “It’s much better to include something like ‘violation of this policy may (or could) result in disciplinary action, including termination of employment,’ ” Lindenberger advised. “If you use language such as ‘violations will result in termination of employment,’ then you’re dealing in absolutes, and that can possibly create problems and tough situations later on.” All the sources interviewed agreed with Lindenberger and said that allowing for the possibility of review and consideration of mitigating circumstances not only makes good business sense; rather, it can increase morale and boost employee engagement. “If you treat and respect employees well and expect them to act like adults, then they will respond favorably,” said Barbara Mitchell, managing partner of The Mitchell Group in Vienna, Va. “Employees often view policies that seem to be arbitrary or too rigid as unfair and ill-conceived. And complying with these kinds of policies can be very tough because you just cannot account or foresee every possible situation or scenario.” The best approach, Mitchell and the other sources said, is to create reasonable and practical policies and then communicate and fully explain the reasons for them. “If you show that there are good reasons to enact a policy and that you’re taking care to ensure the policies are applied fairly and consistently, then employees are more likely to accept and abide by the policies,” Mitchell explained. Consistency is the key here, and treating employees differently under the same policies can generate ill will and, possibly, legal liabilities. “Once you implement a policy, then it’s crucial to make sure it is applied fairly and consistently to everyone in the organization,” Schaefer said. Take Time Before Disciplinary Action All the sources agreed that an organization’s HR department has to play a key role when reviewing policy violations and possible disciplinary action. “HR has to be involved in this process right upfront,” Lindenberger said. “Any review process for a policy violation has to begin in HR. Once all the information is gathered and the situation assessed, HR is usually in the best position to recommend what action should or shouldn’t be taken.” Any disciplinary action, especially employment termination, should be considered carefully. Managers can act on impulse and fire someone on the spot, which often causes problems for employers. For example, in the summer of 2012, Thomas Lopez, a 21-year-old lifeguard, was fired after he left his post to save a drowning man. The man was swimming in a section of the beach that was not patrolled by lifeguards. Lopez rushed to save the struggling swimmer and pulled him to safety. Another lifeguard moved over to watch Lopez’s station. After Lopez was deemed a hero, his employer, Jeff Ellis Management, fired him for abandoning his lifeguard station. Harshly criticized for its action, the company reversed its decision and reinstated Lopez within two weeks. The lifeguard, however, refused to return, saying he would never work for the company again. Jeff Ellis, the company’s CEO, told reporters later that he did not agree with the decision to discharge Lopez and that Lopez’s supervisor did not consult with him. “Many of these kinds of situations can be avoided by careful deliberation and thinking through a problem,” said Mitchell. “This really makes good business sense, because once an employer loses the trust and respect of its employees and its community, it’s a very tough thing to get back.” Bill Leonard is a senior writer for SHRM.