Human Resources & Workplaces

Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether this is a long- or short-term trend. It is, however, an opportune time for employers to review their own policies and procedures in place to prevent and respond to claims of sexual harassment.

Sexual harassment policies should be clear and unambiguous as to what is not appropriate for the workplace. They should prohibit unwelcomed sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Policies should also make it clear that submission to such conduct must not be an implicit or explicit condition of employment, that response to such conduct will not serve as a basis for continued employment, and that such conduct will not be permitted to interfere with an employee’s work. In sum, the goal of any policy should be to clearly prohibit both specific harassment and the creation of a hostile work environment.

An effective policy must go beyond prohibiting demands for sexual favors or inappropriate physical touching at work. Actions such as sexually-oriented “jokes” or “teasing” should not be permitted in the workplace. Offensive flirtations, repeated verbal abuse of a sexual nature, degrading comments about appearance, and the display of sexually suggestive or explicit materials must also be clearly banned. Employers should also clearly state that subtle pressure for sexual activity, physical contact or blocking of movement are also inappropriate.

These prohibitions, however, do not mean employees cannot have friendly interactions. Indeed, we recommend including a caveat that the policy does not consider things like occasional socially acceptable compliments or consensual social relationships as harassment. The stated goal of the policy should be to eliminate unwelcomed, intimidating, hostile, or offensive behavior. It should also be noted that the policy applies to and protects employees of all genders.

As important as a strong anti-sexual harassment policy is, there must also be a complete procedure for enforcing it. This procedure should have at least two reporting mechanisms. The first should be what would be considered the “normal” reporting mechanism, an employee, position or department designated to receive complaints of harassment and investigate. There also needs to be a secondary reporting mechanism for when normal person is either the subject of the complaint or in a position where investigation may be too difficult. For example, if the normal investigator is the head of HR and the accused is her second-in-command, then the secondary reporting mechanism would be best to use. The goal is for an impartial, objective investigation to occur – not one that is just impartial, but also one that is properly perceived as impartial too.

The complaint procedure should also guarantee as much confidentiality as possible. Victims, witnesses, and those who report harassment should be assured their information will be kept as confidential as possible while still conducting a thorough investigation. They should also know that non-frivolous complaints will not result in discipline. So, if they report behavior in a good-faith belief that it violates the sexual harassment policy there will be no negative consequences even if the investigation cannot substantiate the claim. In contrast, complaints made in bad faith, to retaliate or harass, or to otherwise abuse the system should not be tolerated.

Every investigation into a complaint or possible situation of harassment must be thorough, objective, and unbiased. Investigators must seek out and interview witnesses. They should make it clear that neither the complainant nor the accused should have any inappropriate contact with the witnesses during the investigation. Investigators should also seek any documentation, video surveillance, or other tangible evidence of the alleged events available to them. All reasonable steps should be pursued to try to get as clear of a picture as possible as to what truly happened.

Lastly, the policy should clearly define the consequences of such unacceptable behavior. Recommended action for substantiated violations can range from a simple written warning all the way up to and including termination – whatever is necessary to stop the behavior and ensure it is not repeated and the victim (and others) are not at further risk. It should also be made clear that while discipline for violations of the policy may be progressive, the employer reserves the right to implement whatever punishment it deems appropriate, including termination.

Employers know that sexual harassment is a serious issue and should not be tolerated in any workplace. Beyond the civil liability it may bring, it makes a workplace undesirable and saps employee morale. It can hurt a company’s brand, reputation and standing in the business community. This general outline as to how such policies and procedures should work is a start, but smart employers will reach out to counsel to review and update their policies and procedures and make sure they are never the subject of any similar negative headline news articles.

 

 

California companies with five or more employees are subject to new legislation that prohibits criminal background screenings prior to a conditional offer of employment.  This legislation also prohibits requesting information about criminal history on an application or at a preliminary point in the hiring process.  Affected employers should carefully review the law’s requirements as set out in this advisory from attorneys from Troutman Sanders’ Labor & Employment and Financial Services Litigation Sections.

Read “California’s Statewide “Ban-The-Box” Law To Go Into Effect January 2018” here.

Troutman Sanders’ lawyers Wendy Sugg and Megan Nicholls will co-present this free background screening webinar. Participants will learn about:

  • General versus confidential personnel files;
  • Access to employee records and files;
  • Record keeping and compliance;
  • Background screening policies and procedures;
  • Training parameters to ensure compliance; and
  • L.A. Fair Chance Initiative and similar policies in U.S

Wednesday, October 18 • 3:00 – 4:00 pm EST | 12:00 p.m. – 1:00 p.m. PST

The program is presented by Hire Image Background Screening Specialists. Register below for this free program.

RSVP HERE

For more information, call (888) 720-HIRE (4473) or visit www.HireImage.com.

You may have seen the news that the City of Atlanta recently passed an ordinance decriminalizing the possession of less than one ounce of marijuana. Individuals found in possession of such small amounts of marijuana will now be fined $75 and face no jail time. Earlier this year, Georgia enacted a law expanding the qualifying medical conditions for which cannabis oil may be legally used. Now individuals with certain health conditions (including seizure disorders, Crohn’s disease, Multiple Sclerosis, Parkinson’s, Sickle Cell, cancer, Alzheimer’s, AIDS, Autism, and Tourette’s Syndrome) may possess twenty ounces of cannabis oil with up to a 5% THC level with doctor’s approval. While Georgia (and most of its Southeastern neighbors) remains far from legalizing marijuana for medicinal or recreational purposes, these two recent legal changes reflect a national trend towards marijuana that can create a problem for many employers.

Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act, possession of marijuana is still illegal under federal law, prescription or not.

Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act and similar state laws. In 2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies.

More recently, however, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s anti-disability discrimination law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.

While the laws regarding marijuana (and especially its presence in the workplace through a positive drug test) is jurisdiction dependent there are a few general points for employers to consider. First, to the extent employers work with the federal government or have employees subject to federal regulations, marijuana use of any kind is still off-limits. It is also helpful for all employers to explicitly list marijuana as a drug covered by its drug use policies so that employees and applicants understand expectations. However, until the current conflicts between state (or local) and federal laws are resolved, employers need to keep apprised of news laws and interpretations of existing efforts to permit marijuana use, both medically and recreationally where they may have employees living and working.

For those who missed it while getting an early start to their Labor Day weekend, late last week a federal judge closed the door on regulations that would have significantly changed overtime exemptions after previously leaving that door ajar.

Most employers became very familiar — and concerned — with the proposed regulations over the past two years. The regulations would have increased the minimum salaries required for executive, administrative and professional employees to remain exempt from overtime pay under the Fair Labor Standards Act (FLSA). We wrote about the regulations and their effects in detail here. They were set to become effective December 1, 2016, and would have more than doubled those salary minimums from $455 per week, or $23,660 annually, to $913 a week, or $47,476 annually. The regulations would also have increased the salary threshold for the “highly compensated employee” exemption from $100,000 to $134,000. However, a lawsuit was filed in the Eastern District of Texas and the judge who was assigned the case granted an emergency, nation-wide injunction in November of last year which preliminarily (and temporarily) prohibited the Department of Labor from implementing the new rules.

On Thursday of last week, that same court entered a final judgment against implementing the higher salary thresholds. In doing so, the court found Congress intended that both the salary levels and the duties of executive, administrative and professional employees be considered in determining whether they are exempt from overtime requirements of the FLSA. The court concluded that the high minimum salaries proposed by the regulations placed too much emphasis on only one factor and effectively eliminated consideration of what duties are performed by those employees. The ruling can be found here.

For all practical purposes, the court’s ruling means that the door is now shut on those higher salary thresholds. The Department of Labor has even stated in filings that it no longer seeks to increase the salary minimums to the levels called for by the regulations it fought to implement last year. Rather, the DOL seeks now only to clarify with the courts whether it has any legal authority to increase those minimums at all. When that clarification comes, the DOL may well again implement increases, though not like the ones just struck down.

Employers should keep their eyes open for requests for information and comments from the DOL in anticipation of possible increases to minimum salary thresholds in the near future. Fortunately, those increases will likely be substantially smaller than those which would have been implemented late last year. In addition, many employers, having already prepared their workforces and compensation schemes to allow for the possibility of higher minimum salaries, will likely have less cause for concern with the smaller increases to come.

Earlier this month, a widely-recognized Fortune 50 company reached a $1.7 million agreement with the Equal Employment Opportunity Commission to resolve nearly a decade of litigation over the company’s nation-wide policy of discharging workers who do not return from medical leave after 12 months.

While this settlement still requires approval by a federal judge, the litigation itself (and the size and scope of the settlement, which also includes changes to the company’s policy, notice-posting, record-keeping, reporting, and other requirements) should be instructive for employers dealing with a common issue: what to do with employees who are granted a medical leave but cannot return to duty at the end of a set time period.

Continue Reading Could The EEOC Sue Over Your “Maximum Leave” Policy?

Beginning on March 1, 2017, California employers and businesses will need to re-label any single-stall restroom facilities as available to users of either gender.  Such facilities are required to be identified as “all gender” and be universally accessible. Continue Reading Single-User Restrooms Must Be Made Available To All in California

A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees.  In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position.  Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position. Continue Reading Are Disabled Employees Entitled to Be Reassigned to an Open Position?

A nationwide restaurant chain is in a “sticky” situation, and not because of the barbeque sauce on its ribs.  Rather, it faces a trial in a lawsuit filed by the U.S. Equal Employment Opportunity Commission, alleging years of pervasive age discrimination in its hiring of hourly, “front of the house” employees.  The EEOC alleges  that the company failed to hire applicants over 40 for public, visible positions such as servers, hosts, and bartenders, and instead instructed managers to hire younger applicants for those positions at its hundreds of locations. Continue Reading Sticky Notes On Applications Create “Sticky” Problem in Hiring

Last Fall’s election, where so much was said about hacked emails, should serve as a reminder to employers that cyber security is of the utmost important.  Cyber crime continues to rise across the globe.  In some European countries it even outpaces traditional crime.  A single data breach can cost a company millions of dollars in lost revenue, fines, and corrective action, not to mention the damages to its reputation and brand loyalty.  So what are the biggest cyber threats and how can businesses best defend against them? Continue Reading Cyber Security & Employees