Category Archives: Discrimination

Employees Secretly Recording Workplace Conversations

Is it legal for one of your employees to secretly record your conversations with that worker for the employee to use as evidence in a discrimination case? If you are a Texas employer, the answer is “yes”.

Texas is a “one-party” consent state, meaning that as long as one party to the conversation knows about the recording, the recording is legal. This can lead to your employee secretly starting the video app on his smartphone in his pocket just before he walks into your office for a disciplinary meeting. He knows the conversation is being recorded, so as the supervisor, you don’t have to be informed in a one-party consent state like Texas.

More than 30 states have the one-party consent rule, while California, Washington, Florida and a few other states require that every person being recorded give permission to the recording. These “all consent” states make it impossible for a supervisor to be secretly taped when talking to an employee. Making a recording without permission in one of those all consent states can lead to both criminal liability and exclusion of the tapes as evidence in the employee’s discrimination or other lawsuit.

In Texas, however, when an employer is taped, the recordings can be material evidence when an employee sues for discrimination. The Houston Chronicle reported in 2011 that one-third of the discrimination complainants who reached out the Equal Employment Opportunity Commission office in Houston brought audio tapes from their workplace to play for the EEOC investigators.

If there is a recording with you as a supervisor using a racial slur, firing an older employee while saying that the company needs “fresh and energetic workers” or suggesting to a subordinate that he/she can expect a raise if the employee will accompany you to a hotel, you might as well get your checkbook and pen out now to facilitate the inevitable settlement.

Besides the obvious – THINK BEFORE YOU SPEAK, here are some other steps you as an employer can take to protect yourself and the company from employees taping all of your interaction:

  • Adopt a written policy banning recording: As of June 2018, the National Labor Relations Board has newly declared that employers may prohibit employees using recording devices and cameras at work. This is a change from a 2015 NRLB opinion that such policies had a chilling effect on employees asserting their rights to document poor working conditions. In 2018, it was decided that no-photography/no-recording rules have little impact on NLRA-protected rights and could actually improve working conditions by forcing supervisors and subordinates to have open discussions and exchanges of ideas.
  • Ask employees if they are recording: Before you have a hard discussion with an employee, such as a disciplinary warning, ask the employee if he/she is recording the conversation. Make a written note of his response (juries don’t like liars who produce recordings when they stated they weren’t taping). You can remind the employee about the company policy prohibiting such recordings. Ask the employee to set his phone on your desk so you can assure that he isn’t recording or, even better, have him leave it at his desk before coming into your office.
  • Be careful about disciplinary actions for recording: If an employee does record in your workplace, don’t automatically warn or fire that employee even if it violated your policy. You need to know what the employee recorded, so ask to listen to the tapes. If the employee did record or photograph unsafe workplace conditions, sexual propositions, racial epithets, etc., then you need to do a formal investigation and apply effective remedial measures to fix the problem the employee’s recordings uncovered. Then carefully decide with your legal counsel whether disciplining the employee who violated your recording policy could lead to an unfair labor practice, retaliation or whistleblower claim.
  • As the employer, don’t audiotape others in the workplace without consent: While you may have video cameras in the non-private areas of your workplace for safety purposes or to monitor productivity, it becomes more complicated to make audio recordings. Wiretapping (recording the conversations of others without consent when you are not a party to the discussion) is illegal under several statutes. So, you would need permission of every employee as well as the consent of every vendor or guest who comes into your business if you were going to wholesale audiotape all the interactions in your workplace. It can be done, but it is complicated to do correctly, and the wiretapping law is easily violated. And personally, in more than 30 years of practicing employment law, I’ve only seen a handful of situations where widespread audio recording was helpful to a lawsuit defense, much less positive employee relations.

Five Steps for Responding Well to Harassment Claims

Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.

In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).

It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.

But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.

Let’s call these the Five Steps to Responding Well to a Harassment Claim: Continue reading Five Steps for Responding Well to Harassment Claims

What Can I Say? Giving References in Texas

Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?

Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.

Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.

Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.

The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines: Continue reading What Can I Say? Giving References in Texas

Transgender Woman Protected From Sex Discrimination, Court Decides

The U.S. Sixth Circuit Court of Appeals ruled last month that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a transgender woman “on the basis of sex” and also ruled that the supervisor’s belief that gender transition “violates God’s commands” is not a defense to employment discrimination.

The Sixth Circuit, which decides federal cases brought in Kentucky, Tennessee, Michigan and Ohio, reviewed the firing of Aimee Stephens from her job at a funeral home in which she had originally worked as a male in the case of EEOC v. R.G & G.R. Harris Funeral Homes (U.S. 2018)

After she was diagnosed with gender identity disorder, Stephens told her boss, Thomas Rost, that she was planning to transition to female. Her boss fired her. Rost stated during the lawsuit that he terminated Stephens’s employment because “he was no longer going to represent himself as a man” and that a person’s sex is “an immutable God-given fit”.

The Sixth Circuit decided, like the Second and Seventh Circuits (covering New York, Vermont, Connecticut and Illinois, Indiana and Wisconsin, respectively) before it, that a company violates an employee’s civil rights if the employer fires that worker on the basis of sex, including sexual orientation and gender identity.

The funeral home where Stephens worked hoped that its termination of her would be protected by the Religious Freedom Restoration Act and the U.S. Supreme Court’s case of Burwell v. Hobby Lobby (U.S. 2014).

However, almost three decades ago. the U.S. Supreme Court had already rejected the argument that a supervisor’s religious squeamishness was sufficient to overcome the civil rights laws. The United States Supreme Court ruled in Employment Division v. Smith (U.S. 1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote conservative Justice Antonin Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Despite this long-standing Supreme Court precedent, the funeral home argued that the presence of a transgender employee would require Rost to leave his job, because forcing him to work with a transgender person was an infringement of his religious rights and also would “often create distractions for the deceased’s loved ones”. Continue reading Transgender Woman Protected From Sex Discrimination, Court Decides

Written Policies to Protect Your Business During the Opioids Epidemic

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic

Sexual Harassment Focus Should Prompt Employer Vigilance

To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.

Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”

While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.

Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.

If you are a business owner or manager in a company with at least 15 names on the payroll, you would be wise to expect to face a sexual harassment complaint sometime in the near future, and to take these six steps now to lessen the sting of such a complaint: Continue reading Sexual Harassment Focus Should Prompt Employer Vigilance

“If True”: How to Assess Credibility in Sexual Harassment Investigations

“If these allegations are true” has been the most hotly debated qualifier used by politicians recently in reaction to all of the sexual misconduct accusations in the news.

While many politicians use the phrase out of cowardice to avoid taking an actual stand on an important issue, there is an underlying point: it is a necessity to determine credibility when someone has been accused of sexual misconduct.

Having conducted sexual harassment investigations many times during the last 25 years, I’ve often been required to determine if a victim is telling the truth or whether the accused is believable. Juries have to do the same thing.

Even if the case never goes to trial, employers have to make decisions about the right steps to take when a man (and yes, it is almost always a man) is accused of being sexually inappropriate in the workplace. The company looks to me for guidance on that decision if I am conducting the investigation or if I’m defending the employer when a claim of sexual harassment has been brought.

The first step in determining “if true” is to believe the accuser. I know that irks some people, but I have experienced too many situations where the boss’s first reaction is to tell the victim, “Don’t worry about him, Honey. That’s just the way he is. It doesn’t mean anything.”

That is an actual quote from a sexual harassment case that I handled, but I have heard variations of that speech dozens of times in my legal career. If that is the employer’s attitude, the company has already made a credibility determination without investigation—the woman is unworthy of being taken seriously after she got up the courage to complain.

Remember that believing the victim is only the first step in the process, not the end of it. That step should be followed by a prompt, fair and thorough investigation conducted by someone who does not have a horse in the race.

A sexual harassment investigation should involve interviewing the victim, any witnesses and the accused, and also reviewing documents, policies and other proof, which usually includes pictures, emails, texts, phone records, internet searches, calendars, greeting cards, and recordings.

When I am doing an investigation, I have to make a judgment about whether each witness is believable. So, my questions don’t just center on the alleged events, but also on motivations, timing, relationships and track records.

Here’s what I look at in determining whether the person I am talking to is believable: Continue reading “If True”: How to Assess Credibility in Sexual Harassment Investigations

No Peeking! Social Media in Hiring

Can the company recruiter review an applicant’s personal social media accounts before making a hiring decision? Yes, in Texas, an employer may look at any public postings, but there are enough legal risks that I would discourage you as an employer from peeking.

Why shouldn’t an employer take advantage of the wealth of information that may be available on an applicant’s Facebook page, even if the employer hasn’t “friended” the applicant? Because much of the information you could discover on an applicant’s social media is not job-related, and therefore becomes the basis for a discrimination claim.

Because many people are careless about the privacy controls on their social media profiles, you may find out that your applicant has a disability that was not obvious during the interview, but comes more clearly into view when you read the “I’m praying for you” messages on the applicant’s Facebook page. Are you going to violate the Americans with Disabilities Act by failing to hire the applicant now that you know this information?

You may discover that the applicant is pregnant when you see that she announced the exciting news on Twitter. “But I want to know if she is pregnant, so I don’t lose her for twelve weeks next year,” you will tell me.

In response, I’ll refer you to the recent case of United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., in which an applicant was offered a $13.50 per hour job with an insurance brokerage that she joyfully accepted. She told her old employer she was leaving. She followed up with the new employer and asked about the company’s maternity policy, revealing that she was pregnant. Her job offer was revoked by the brokerage that same afternoon. That revocation decision cost the brokerage $100,000 because it violated the Pregnancy Discrimination Act.

So, do you really want to know what you may find out on social media? Three-quarters of all Human Resources professionals surveyed in 2013 by the Society for Human Resource Management said that they do not screen personal social media accounts because they fear what they will find. I advise my employer clients to exercise the same restraint.

But if you insist on peeking:

  • Screen all or none. Your electronic screening history will be subpoenaed in any discrimination claim and it will be apparent if you only screened women, for example, to see if they have young kids that might affect their attendance.
  • Don’t ask for the applicant’s passwords to their social media accounts. Many states have passed laws banning this practice and any jury that hears that you made that request will hate your guts.
  • Getting a third party to screen for you requires that you follow all of the complex requirements of the Fair Credit Reporting Act (prescreening notice, summary of rights, pre-adverse action notice, time to correct the record, post-adverse action notice).
  • Be careful what action you take once you have screened. If you determine that the applicant is transgender, Muslim, disabled or pregnant based on her FB page, are you going to risk a discrimination lawsuit by not hiring her? This is when you need to get your employment lawyer involved.
  • What if you see posts or pictures that cause you to believe that an applicant could be a threat to other employees? If you hire him anyway, you can be sued for negligent hiring if he ever becomes violent at work.
  • If you see a post reflecting union activity or protected concerted activities (discussing wages or terms and conditions of employment, such as complaining with a coworker at a former job), any adverse action you take involving that applicant could violate the National Labor Relations Act.

I don’t include LinkedIn when I am advising employers to stay away from an applicant’s social media pages. LinkedIn and similar industry sites are commonly used for business and not social purposes. Applicants are generally much more discrete about what they post on their LinkedIn pages.

In addition, posting company job openings on social media and using a service like LinkedIn to attract passive and active job applicants is common now and doesn’t run the same risks as peeking at an applicant’s personal social media pages.

Suspicious Behaviors Common in Workplace Harassers

After 30 years of advising employers, conducting sexual harassment investigations, and defending companies sued for discrimination and harassment, I have developed a list of suspicious behaviors that I see repeatedly among sexual harassers in the workplace.

I don’t think of myself as precogniscent of whether a person is actually a harasser or not prior to investigating a complaint, but I have repeatedly seen what I would call these “red flag” behaviors that certainly make it more likely that a supervisor may be accused of harassment at some point.

From the stories in the press about the sexual misconduct of Harvey Weinstein, Roger Ailes, and others, it appears from witness statements that many of these warning signs were present and ignored by their companies before the complaints about their misbehavior finally came to light.

Red flag behaviors that employers should take very serious notice of even before a harassment complaint is filed include:

  • Any inappropriate remark at work by a supervisor that has racist, sexist or other prejudiced overtones;
  • Criticism directed towards employees of one gender, one race, those of different religious beliefs, etc. and not towards ones of the supervisor’s own gender, race or religion;
  • Comments by a supervisor that are often about an employee’s or applicant’s appearance or personal attributes rather than work-related competence;
  • A supervisor who verbally hits back aggressively when challenged by someone “beneath” the supervisor;
  • Unprofessional online behavior, such as forwarding questionable emails or viewing porn at work;
  • Attempts to cover tracks, for example, by using a texting service like Snapchat that quickly destroys messages for what are allegedly work-related conversations;
  • Flirting by a supervisor, even if it seems harmless, that makes the object of the flirting uncomfortable;
  • A supervisor who complains repeatedly about his/her marriage and acts like the victim in that relationship;
  • Supervisor dating a subordinate;
  • Supervisor who can’t be trusted to behave correctly around alcohol, such as during the company Christmas party or softball game;
  • Gifts given by a supervisor to a particular subordinate and not to others; and
  • The settlement of a prior sexual harassment complaint for an eye-popping $32,000,000 before the employer has to pay to settle five other claims. Let’s just call that one the O’Reilly Factor.

Continue reading Suspicious Behaviors Common in Workplace Harassers

Does the First Amendment Apply at Your Company?

Does the First Amendment protect an employee in Texas, allowing him to say whatever he wants on the job–to take a knee in protest, to write a manifesto about how women don’t belong in the tech sector, or to tell the CEO of his company to “kiss my a—, Bob”?

Not a chance. The First Amendment to the Constitution of the United States of America says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By prohibiting Congress from passing laws that abridge freedom of speech, the Constitution did not limit a private sector employer’s right to fire an employee (on the other hand, government employees have some First Amendment protections).

In addition to no constitutional bar, businesses in Texas are protected because Texas follows the “at will” employment rule, meaning a private employer can fire an employee for a good reason, a bad reason or no reason at all, including firing an employee because the employer didn’t like something the employee said, either out loud or symbolically.

So, if Jerry Jones had decided to fire any Dallas Cowboy who kneeled during the National Anthem before the Monday Night Football game, the First Amendment would not have protected the player. Neither would Texas law. Interestingly, Jones came up with an inoffensive compromise by encouraging his players to kneel before the anthem to protest racial injustice and even kneeling with them. By the time the anthem played, the whole team was standing in unity, with arms locked together.

Google also was unhampered by the First Amendment when the company fired an employee in August for writing a manifesto blasting Google culture of diversity. Particularly, the employee argued that women occupied fewer leadership positions in the tech industry because of unsuitable personalities. For example, he said that women are more anxious, and therefore unable to handle the stress of high-powered leadership positions. He concluded that efforts by Google to place more women in technology and leadership were “unfair, divisive, and bad for business.”

However, the First Amendment’s application is not the end of the inquiry. There are other laws besides the First Amendment that an employer has to consider (in consultation with the company’s employment lawyer) before firing an employee for expressing herself.

  • Is the employee’s speech related to the employee’s religion? Employers even in the private sector cannot discriminate on the basis of religion and also must accommodate a person’s religion. The discrimination laws always trump the “at will” rule.
  • Is the employer allowing one group to express themselves but not another protected class? For example, if only African-American players for the Dallas Cowboys had kneeled during playing of the Star-Spangled Banner, but some white players failed to put their hands over their hearts, Jerry Jones may have faced a racial discrimination lawsuit if he had fired only the kneeling players for disrespect.
  • Are you punishing any employees for speaking a language other than English at work? For safety or productivity purposes, there may be a limited way in which you can do this during actual work time, but it is a very tricky area of the law and you don’t want to attempt this without serious consultation with your employment attorney.
  • Is the employee complaining about a safety violation, a crime or other public policy matter? In that case, there may be whistleblower statutes that protect the employee.
  • Is the employee expressing problems with wages, hours, shifts, policies or other terms and conditions of employment with other employees? Then the National Labor Relations Act may prohibit you from firing the employee because she is participating in “concerted activity” under this labor statute, even in a non-unionized workplace. This is what happened with the coal miner who sent a paltry bonus check back to the CEO with the words “kiss my a–, Bob” on them. A court made the coal company return that employee to work after he was fired, because his protest was protected concerted activity involving his pay.
  • Texas employers are prohibited from taking adverse action against an employee based on who the employee voted for or for refusing to reveal how he or she voted. Employers must allow employees time off to vote and to take leave to attend a local or state political convention and cannot threaten or retaliate against the employee for such attendance.

Interestingly, there are times when an employer almost has no choice but to fire an employee for expressing himself. For example, if an employee is sexually harassing another employee with lewd comments, suggestive emails and/or pornographic pictures, the hostile environment the harasser is causing with his words and actions may require the employer to fire him after completing an investigation, both to protect the company and the victim.