Thursday, June 26, 2014

Supreme Court Deals a Severe Blow to the NLRB

So, last night I was finishing up a post about how the National Labor Relations Board (NLRB) was continuing its attack on employers’ ability to manage their workforce with a recent ruling that firing an employee who called his manager a "f***ing mother f***er" (among other choice names) was a violation of that employee’s Section 7 rights. Section 7 of the National Labor Relations Act provides all employees — not just unionized employees– the right to:

"self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities …"

Any employer policy or practice that restricts such rights is vulnerable to a charge of unfair labor practice under NLRA Sec. 8.

Lovely. So now it’s acceptable to scream, yell, throw furniture around and call your manager obscene vulgar names. Exactly how that fits into concerted, protected activity, I really don’t know.

Then, this morning I see that the Supreme Court of the United States delivered a wonderfully satisfying smack to the head of the NLRB, by way of invalidating President Obama’s "recess" appointments to the Board in January of 2012. See article here.

According to the HR Policy Organization, there are more than 700 NLRB decisions that are now essentially invalid since they were made with the illegal appointments, which rendered the Board without a quorum and therefore unable to legally render any decision during that time period.

Many of these decisions were attacks on employers’ social media policies, confidentiality policies, employee handbooks and several other normal, common sense rules employers utilize to maintain an ordered and productive work environment.

That these overreaching and out and out bizarre rulings have essentially been declared null and void is of course, a wonderful ray of sunshine in an increasingly oppressive legal and regulatory atmosphere. Whether the NLRB will attempt a do-over on these rulings is anybody’s guess right now. Hmmm. Maybe the Board’s actions during that time could be considered an unfair labor practice? Turnabout is fair play, is it not?

Thursday, June 19, 2014

Risks of Harassment by Non-Employees

Employers Liable for Third Party Harassment

As HR pros, we get that sexual harassment from coworkers or supervisors is a serious problem should it occur and that our organization is responsible for preventing it and stopping it. But are we as quick to deal with it if the perpetrator isn’t an employee, but someone from outside, like a vendor, a delivery person or repairman, or even a business partner? Are you prepared to handle that? A recent case heard by the U.S. Court of Appeals for the Fourth Circuit shows us that Dal-tile Corp probably wishes it handled the situation differently. This article from Littler summarizes the case here. The employee was a customer service representative at Dal-tile and had been repeatedly harassed by a sales rep from a client business. The bottom line is that the court found that an employer is liable for harassment by a third party when the employer knows or reasonably should have known about the harassment and fails to take prompt, remedial action reasonably calculated to end the harassment. 

Furthermore, another recent case involving students’ harassment of their teachers shows us that the environment doesn’t matter – business office or classroom – as an employer, you may be liable for third party harassment. In this case, a Catholic school teacher brought a lawsuit against a school alleging that students took turns taking photos up the skirts of their female teachers. The teacher was harassed for more than two years in her own classroom without supervisors or school administrators intervening, despite her repeated complaints. You can read about it further here.

While these types of situations can occur at any business, it’s probably not surprising to think that establishments like bars and restaurants may be more prone to such incidents; and even hospitals and nursing homes or country clubs. But any business is vulnerable.

What should employers do to minimize the risk of potentially costly third-party liability lawsuits? Remember that courts want to see whether an employer took "immediate and appropriate corrective action" to remedy the situation, but also want to see that you take sexual harassment seriously and have taken positive steps to prevent it. Some steps include the following:

  • Train supervisors that harassment of employees by outsiders is every bit as serious as harassment by fellow employees or supervisors. Make sure your anti-harassment policy includes this point.
  • Train all employees that they should report any offensive conduct from customers, patrons, patients, delivery or service people or any other outsiders in the same way as if it came from co-workers or supervisors.
  • If you receive a complaint about an outsider, conduct an investigation as thoroughly and seriously as you would with an insider complaint. Your investigation may be more difficult, but no less important. Gather as much information as possible and draw a reasonable conclusion.
  • Act promptly if your investigation shows harassment occurred. And do so in a way designed to resolve the problem. If you find that harassment did occur, you’ll need to take action: bar a customer or client from your company, store or restaurant, replace a contractor or service provider with a different one.
  • Inform the complainant what steps you took, and encourage her to report any further incidents.
Management may feel reluctant to confront a customer or client, especially.  How do you control someone who is not your employee? How do you confront someone who may be paying you for services?  Despite the potential disruption, discomfort and possible loss of revenue from taking action against a client or customer, that certainly will be less than what it could cost you in a lawsuit, the good will of your employees and in the eyes of your community.

Thursday, June 12, 2014

Hostile Work Environment?

Or is it just a jerk being a jerk?

It sometimes happens (and not infrequently), that employees come to their HR rep and complain of being harassed and experiencing a hostile work environment. This will usually set off that internal alarm that gets us on our feet (mentally, if not physically) and ready for action. As we begin our questioning we quickly find out that what has really happened is that the employee experienced what she viewed as rude behavior or being "picked on". Or better yet, that she feels her supervisor’s demands that she do her job constitutes harassment. As much as the word "harassment" is thrown about, people don’t always realize that the word, along with "hostile work environment" has a very specific legal meaning in the workplace. And being picked on, or told to do your job (however rudely) isn’t it.

It doesn’t include all circumstances that the word "hostile" would generally suggest. Basically, there is no law against being a jerk.

Anti-discrimination and harassment laws protect employees from being treated negatively in hiring/firing/layoff decisions, pay practices, promotional and job assignment decisions, training opportunities, etc.) because of their actual or perceived inclusion in a protected class or status (e.g., race, gender, age, ethnicity, marital status, religious affiliation, veteran status, disability, and in some locations because of their parental status, political affiliation, or sexual orientation or gender identity). Legally, a hostile work environment can only arise in the context of illegal discrimination.

However, a hostile work environment may exist when unwelcome conduct is based on those characteristics protected by law, and the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. The law looks at these factors in determining whether a hostile work environment exists:

  • the frequency of the discriminatory conduct;
  • its severity;
  • whether it is physically threatening or humiliating, or a mere offensive utterance; and
  • whether it unreasonably interferes with an employee’s work performance.

While it’s certainly unpleasant, it’s not illegal because your coworkers are just mean and petty, for example. Just because a workplace is intimidating, stressful or unpleasant doesn’t make it hostile, at least not from a legal perspective. Occasional teasing and off-color comments do not qualify as harassment, nor usually does a single incident.

Displaying of sexually explicit photographs, or other demeaning pictures, or obscene jokes, slurs and insults (even via email or other electronic means) or unwelcome touching can be deemed illegal conduct.

Despite efforts to legislate against bullying in the workplace, as of yet, there are no laws to regulate civility in the workplace. It is important not to confuse illegal conduct with being a jerk.

Thursday, June 5, 2014

In Loco Who??

The FMLA and "in loco parentis"

Employers and the HR folks who work for them are constantly tested by the myriad of employment laws and regulations; new ones that are passed each year, as well as amendments to existing laws. The Family and Medical Leave Act (FMLA) is one such law that can be a challenge to administer and manage. Because the coverage is so broad (as was intended) and the guidance is sometimes rather vague, it’s not hard to miss some aspects of the law. The concept of "in loco parentis" is one that has tripped up plenty of folks.

For FMLA leave purposes, "parent" is defined broadly as a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child. See 29 C.F.R. § 825.122(b). (The FMLA military leave provisions have a specific definition of parent for purposes of servicemember caregiver leave. See 29 C.F.R. § 825.122(i).) Because we are so geared to look for the parent/spouse/child relationship, we miss that the law is broader than that and covers those who may have raised us instead of our biological parent, or those we may have raised in placed of a biological parent.

In loco parentis commonly refers to a relationship in which a person "stands in place of" a parent by taking on all the obligations of a parent to a child with whom he or she has no legal or biological connection. It exists when an individual intends to take on the role of a parent.

Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or provide financial support to a child. See the DOL’s Fact Sheet #28B. The courts have provided some factors to consider in determining in loco parentis status:

  • the age of the child;
  • the degree to which the child is dependent on the person;
  • the amount of financial support, if any, provided; and
  • the extent to which duties commonly associated with parenthood are exercised.
Likewise, an eligible employee is entitled to take FMLA leave to care for a person who stood in loco parentis to the employee when the employee was a child. The fact that the employee also has a biological, adoptive, step, or foster parent, does not change that determination. Unless the in loco parentis relationship existed when the employee was a child however, an employee is not entitled to take FMLA leave to care for a grandparent, an aunt, or another non-covered relative with a serious health condition. See DOL’s Fact Sheet #28C.

Some may feel that asking for documentation of such a relationship is difficult and are unsure as to what would be acceptable. An employer’s right to documentation of the family relationship is the same for an employee who states the need to care for an individual who stood in loco parentis as it is for a biological, adoptive, step, or foster parent. The documentation can be as simple as a statement asserting the relationship. Such a statement might include the name of the individual and a statement of the individual’s in loco parentis relationship to the employee when the employee was a child. The employee needs to provide sufficient information to make the employer aware that the individual in need of care stood in loco parentis to the employee when the employee was a "son or daughter."

It pays for HR pros and other people managers to review the requirements of such laws and regulations when faced with a decision that may not be as clear cut in the details as we first think. Just another day wading through the sometimes murky waters…….