Category Archives: Training

Religious and National Origin Discrimination in Heated Political Times

It is easy for employers to lose sight of the obligation to protect all employees regardless of national origin or religion with all the heated political rhetoric we hear right now. But it is still against every federal and state civil rights law for an employer with 15 or more names on the payroll to allow any workplace harassment or discrimination on the basis of where someone is from, what language they speak or what religion they practice.

Since 2001, religious and national origin discrimination cases filed by Muslims and others of Middle Eastern ancestry have increased. Similarly, when illegal immigration is a hot topic, employees of Mexican heritage are often targeted for discrimination.

The Equal Employment Opportunity Commission now receives approximately 3000 charges each year about religious discrimination and 9000-10000 charges of national origin discrimination in the workplace.

In some circumstances, the discrimination is quite blatant.  In Huri v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois (7th Cir. 2015), the Muslim plaintiff of Saudi Arabian origin alleged that her supervisor was a devout, vocal Christian who was unfriendly to her from the beginning. The supervisor allegedly referred to one of Huri’s colleagues as a “good churchgoing Christian” while calling Huri “evil”.  The supervisor reportedly also made a show of saying Christian prayers in the workplace while holding hands with employees other than Huri.

Any employer should be able to quickly recognize the legal and morale implications of such behavior and correct it. But other questions arise when well-meaning employers are confronted with an employee who may be from a culture or religion that the employer is unfamiliar with. That’s why in 2016 the EEOC released guidelines specifically about preventing discrimination against employees on the basis of national origin. These guidelines join the EEOC’s specific guidance on the workplace rights of employees who are perceived to be Muslim or Middle Eastern and the EEOC’s guidance on best practices to prevent religious discrimination in business settings.

What does an employer need to do to prevent or address any hostility in the company towards an employee on the basis of that employee’s national origin or religion? Continue reading Religious and National Origin Discrimination in Heated Political Times

Sexual Harassment Prevention Training Essential

Training photo

Every employer with 15 or more employees needs to require employees to attend sexual harassment prevention training. That is the takeaway that businesses need to understand from a new task force report on harassment in the workplace that the Equal Employment Opportunity Commission published in June 2016.

The EEOC’s report states that businesses have “to reboot workplace harassment prevention efforts.” The EEOC is especially concerned that most sexual harassment  prevention training focuses only on defining harassment and telling employees what they are prohibited legally from doing.

Instead, the EEOC is encouraging (read: requiring) businesses to also include workplace civility training and bystander intervention training. If a disgruntled employee makes an illegal harassment claim against your business in the future, the EEOC, as the investigating agency, is going to immediately require your business to provide evidence that you thoroughly trained your employees on these new topics. If the harassment complaint goes to trial, this training will also be your best defense.

Bystander Intervention Training is defined by the EEOC report as training that helps employees identify unwelcome and offensive behavior and creates collective responsibility to step in and take action when they see other employees exhibit problematic behaviors. The training is geared towards empowering employees to intervene when they see unacceptable conduct and gives them resources to do so.

Workplace civility training focuses on teaching employees to abide by reasonable expectations of respect and cooperation in the workplace. The emphasis is supposed to be positive—what the employees should do—rather than those things they are prohibited from doing. The training needs to include navigation of interpersonal relationships, an understanding of conflict resolution and teaching supervisors how to be civility coaches. In other words, it is now the company’s responsibility to teach workers how to be responsible, respectful professionals. On the job training and supervisor modeling is fine, but you need to add formal in-house training also.

Interestingly, at the same time that the EEOC is “encouraging” employers to promote more civility in the workplace and to prevent bullying and harassment, the National Labor Relations Board is issuing decisions that punish non-unionized businesses for written policies requiring employees to be respectful to coworkers.

The NRLB has repeatedly found that a company is infringing on an employee’s labor rights when the employer enforces handbook policies like this one from T-Mobile’s employee manual: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with clients, co-workers and management.” The NRLB thinks that kind of policy has a chilling effect on employees who have a right to discuss with coworkers all of the terms and conditions of their employment. I’ve alerted you about the NRLB’s crusade against policy manuals before.

So you as an employer are left with trying to decide whether to be investigated and sued by the NLRB or the EEOC. Continue reading Sexual Harassment Prevention Training Essential

HR Director Can Be Individually Liable for FMLA Violation

Most human resources professionals and managers think that working for a corporation gives them some protection from being sued themselves by former employees, but a federal appeals court recently held that an HR director can be individually liable for violations of the Family and Medical Leave Act (“FMLA”). The federal Second Circuit Court of Appeals made this decision in Graziadio v. Culinary Institute of America, No. 15-888-CV (2d Cir., Mar. 17, 2016).

The Second Circuit decided that the HR director who instigated the firing of an employee who was out on leave to care for her ailing sons could be sued in addition to the company who formerly employed the plaintiff. The FMLA provides that for purposes of being a defendant in a lawsuit, an “employer” includes “any person” who “acts, directly or indirectly in the interest of an employer” toward an employee. Therefore, a manager, supervisor, vice-president, HR director, leave administrator and other decision-making employees could be sued along with their company if the FMLA isn’t administered correctly.

The courts look at the “economic realities” of the situation, including whether the HR director had the power to hire and fire employees; supervise and control employee work schedules or conditions of employment; determine the rate and method of payment; and maintain employment records. Although a vice-president actually made the final firing decision in the Graziadio case, the evidence suggested that the HR director played an important role and the vice-president essentially just rubber-stamped the HR director’s recommendation of terminating the employee who was on leave.

These kinds of decisions are frightening to management employees who have to make hiring and firing decisions and those who have to administer the complex FMLA. However, this ruling should not come as a complete surprise to those of us who live and work in Texas, because the Fifth Circuit, which rules on federal cases in Texas, Louisiana and Mississippi, made a similar ruling ten years ago.

In addition, our Fifth Circuit court approaches the Fair Labor Standards Act (wage and hour) cases in the same manner. If the economic realities demonstrate that a supervisor was responsible for the misclassification of an employee as an independent contractor (meaning that the proper taxes weren’t paid, among other violations of employment laws) or the underpayment of minimum wages or overtime, then that supervisor may face a personal lawsuit by a former employee, along with the company being sued.

How can you as a manager or HR director protect yourself from a lawsuit that could endanger your personal assets? Continue reading HR Director Can Be Individually Liable for FMLA Violation

Preventing Workplace Violence

Do you as an employer have a plan to address workplace violence?  This topic is front and center in the wake of the recent workplace shootings in Hesston, KS, Kalamazoo, MI, and Roanoke, VA.  Although legislation has been introduced to provide a “safe harbor” for employees and employers to report violent or threatening behavior, it is important for employers to assess their own workplaces and look at what can be done to make that environment as safe as possible.

The House of Representatives introduced the “Safe Harbor for Reporting Violent Behavior Act” on February 11, 2016, in response to the on-air shooting of a television reporter and cameraman in Roanoke, VA.  This bill would provide immunity from lawsuits to individuals who, in good faith, make a report about an employee (or potential employee) who exhibits violent or threatening behavior.

However, regardless of whether or not this bill passes, employers still have a duty to examine their workplace violence policies and take steps to decrease any possible dangers in the workplace.  Several things that should be done include: Continue reading Preventing Workplace Violence

Texas Discrimination Charges Too Numerous

Texas leads the nation in number of charges filed with the EEOC alleging gender discrimination, race discrimination, age discrimination, and disability discrimination, according to a recent story from the Society for Human Resource Management.  It is time for more employee training and better personnel policies for your Texas business so you don’t have to battle a discrimination charge.

 

2011 Budget Means More Enforcement Against Employers

I’ve been trying to get the word out to employers for the last several months that the executive branch of the federal government has employers who violate any of the federal employment laws in its sights (click here for an earlier blog post on enforcement efforts). Money for enforcement is pouring into federal agencies like OSHA, which enforces health and safety regulations, the Department of Labor, which enforces compensation requirements like the overtime and minimum wage laws, and the EEOC, which enforces the discrimination laws.

Within the 2011 fiscal year budget proposed by President Obama last week, there is money for the hiring of 358 more Department of Labor employees, including 177 investigators and other enforcement staff, bringing the total proposed DOL workforce to nearly 18,000.

OSHA will add 25 more employees to inspect workplaces for safety violations, meaning that 42250 businesses will be subject to these inspections in FY 2011. “Today’s budget affirms this administration’s strong commitment to vigorous enforcement,” U.S. Secretary of Labor Hilda Solis said. “We are sending a strong message throughout industry that we will not tolerate the endangerment of workers.”

The budget also supports a joint effort of the Treasury Department and the DOL to identify employers who hire “contract labor” in an effort to avoid payroll taxes and skirt the overtime and minimum wage laws. For years, employment lawyers like me have been trying to warn employers that “contract labor” is illegal and that there is a very difficult test for employers to prove that any worker is actually an independent contractor. Those employers who still misclassify employees as contract laborers could face increased possibilities of federal investigators reviewing their books, requiring repayment and charging the businesses large fines.

As an employer, it is your responsibility to assure that you are complying with all the federal laws that will be enforced even more stringently if the 2011 budget passes. You are taking a grave risk if you believe that you are in compliance just because your pay, safety or firing practices are the same as everyone else’s in your industry (who often are doing it wrong too), or if you believe you are proceeding correctly because “that is the way we have always done it,” or if you believe that your employees are not dissatisfied so you must be doing something right. Many of these laws are counter-intuitive, meaning you are probably doing them wrong even if you are using common sense! Don’t assume that you are operating within the bounds of federal employment law unless you have a legal opinion from an experienced employment attorney confirming that.

Employee on Cell Phone in Car can be Costly for Employer

Debra Ford was driving on Interstate 16 in Georgia when her car was hit by a sedan driven by Vanessa McGrogan, an International Paper Company employee who was driving a company-owned car with the cruise control set at 77 mph in a 70 mph zone and according to a witness, talking on her company-issued cell phone at the time of the accident.

Ford’s car was overturned and slid along the asphalt and Ford’s arm got trapped between the car door and the pavement, leading to an amputation of her arm up to the shoulder.

Who do you think had to pay to settle the lawsuit that inevitably followed this horrific accident? International Paper, of course.

The employer-issued cell phone and company vehicle guaranteed that the party with the deepest pockets would be sued. McGrogan’s employer settled the case for $5.2 million in 2008.

Cell phone use also led to a woman who was severely injured by a salesman involved in an accident while he was talking on his cell phone being awarded $21 million by a Miami jury in a suit against lumber wholesaler Dykes Industries in 2001. The salesman was driving on company business at the time and talking on his cell phone.

In January 2010, a lawsuit in South Carolina was settled for an undisclosed amount just hours before trial. At stake was $55 million in insurance carried by the employer of Sharon King, who was not working at the time of the incident, but was driving a company vehicle and talking on her cell phone when she allegedly hit two bicyclists riding in a charity event. King pleaded guilty to a reckless driving charge.

The King case has received so much publicity in South Carolina that the legislature there is fast-tracking legislation to ban texting and talking on hand-held cell phones while driving. Some of that urgency may have resulted from the brilliant (and inflammatory) pretrial statement of one of the attorneys for the cyclist’s estate who called cell phone use in cars “the new DUI”.

Texas does not ban hand-held cell phone use for anyone other than bus drivers. What that means is that as a Texas employer, you have to take responsibility for training and monitoring your own employees who could put the company’s assets at risk by driving and talking or texting.

A texting driver is 23 times more likely to have an accident or come close to having an accident than a driver who is paying attention to her driving, according to a Virginia Tech study.

The National Highway Traffic Safety Administration says that 25% of all crashes are caused by distraction. Talking on a hand-held cell phone while driving has been shown to be significantly more distracting than eating or talking to a fellow passenger. And we can all agree that texting while driving is idiotic.

So how does an employer prevent its employees from exposing the company to enormous liability while driving?

Reconsider whether the liability associated with issuing company vehicles and company cell phones is worth the perk. Many companies would rather reimburse an employee his mileage for using his own car during work hours or pay a cell phone allowance than to assume the 24-hour per day liability that is associated with a company vehicle and a company cell phone.

You also need a written policy and extensive training of every employee followed by strict disciplinary enforcement of the policy prohibiting any use of a hand-held cell phone while driving on company business. Although a complete ban of cell phones in cars would be the safest policy, if that is impractical, you can at least buy Bluetooth headsets for your employees to discourage any hand-held cell phone use.

Finally, check your company liability insurance policies to make sure you are well covered if anything as horrendous as the King case happens to one of your employees.

Beware New ARRA Whistleblower Law

More than just Big Brother is watching you. Your employees are watching too, and can use the protections of a new whistleblower law to protect their jobs if they report any kind of wrongdoing by your business.

The new whistleblower law is included as a tiny piece of the massive American Recovery and Reinvestment Act (“ARRA”). Employees of any company that is a recipient of any stimulus money provided by ARRA are protected from job terminations if the employee discloses a problem involving stimulus funds to a supervisor or an enforcement agency. The protection applies when the employee reasonably believes he/she is disclosing a problem related to stimulus funds, such as:

  • Mismanagement or waste; or
  • Danger to public health or safety; or
  • Abuse of authority; or
  • Violation of a law or regulation governing a grant or contract relating to stimulus funds.

Companies that may receive stimulus funds include healthcare companies, especially technology providers in the healthcare field, airports, alternative energy companies, contractors rebuilding infrastructure, companies retrofitting closed industrial facilities, medical researchers, scientists, libraries, schools, shelters, and many other businesses. Therefore the employees of these companies may have a new and unprecedented level of employment protection from the ARRA whistleblower regulations.

What should a company expecting to or already receiving stimulus funds do in response to this whistleblower liability?

  • Hire and train a quality control expert or contract administrator to oversee the efficient and safe use of the stimulus funds.
  • Prepare ethics guidelines for the handling of funds and the work to be accomplished and have every employee sign off on them.
  • Train your managers and supervisors to immediately report any complaints about efficiency, public health, contractual violations, etc. from their employees to the quality control officer.
  • Be very careful about terminating employees. Document all reasons for terminations. If an employee has made complaints inside or outside of the company, talk to an employment lawyer about your company’s exposure to whistleblower liability before you terminate the employee.

Paying for Employee Training Time

Dow Chemical’s plant in Freeport, Texas recently had to pay a $861,647 settlement for back wages to 648 operating engineers who claimed they were not compensated for hours spent studying during mandatory training. The Department of Labor (“DOL”)investigated and found that the engineers should have been paid for the time spent in training required by the company.

If you want to make sure that you don’t get hit with penalties for the way in which you pay your employees for training and meeting times, here a few guidelines for paying your employees correctly :

  • The basic regulation states “”Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met: (1) attendance is outside of the employee’s regular working hours; (2) attendance is in fact voluntary; (3) the course, lecture or meeting is not directly related to the employee’s job; and (4) the employee does not perform any productive work during such attendance.”
  • Unless you can prove that the meeting or training course that your employee attends meets all four of these criteria, you must compensate the employee for the time in the meeting or the training. Most business meetings and trainings will not meet these criteria, so you will have to compensate your employees for them.
  • An example of meetings that would not have to be compensated would be nonprofit board meetings, which could benefit your employee’s career in the long run, but are usually voluntary on the employee’s part and not directly related to your business. Also “meetings” such as happy hours after work or playing on the company softball team, while indirectly involving working relationships, fit these criteria so do not have to be compensated.
  • On the other hand, a lunch time meeting to talk about staff assignments, a Saturday session for employees to pack up to move the business to a new location, or a nighttime cocktail hour to entertain prospective clients of the company are all the types of meetings that would require you to compensate your employees.
  • The DOL takes the position that training that is required by law to allow the employee to work for you, such as the 15 hours of annual training required of child care workers every year in Texas, is compensable because the training is directly related to the job and is not voluntary because the employee cannot work in that job without it. Interestingly, it is the DOL’s position that mandatory annual continuing education for professionals, such as accountants and lawyers, is of general applicability and is “portable” in that profession. Therefore, the employer doesn’t have to compensate the professional for that training time. Of course, the professional is probably exempt from the overtime requirements and paid on a salary, so no extra compensation would be due anyway.
  • If an employee decides to go back to college or trade school on his own initiative, the employer does not have to pay the employee for that time even if the courses are related to the employee’s work because the employer did not require the employee to go back to school or otherwise make going back to school a job requirement. The employer can even agree to reimburse those college courses that apply to the employee’s job, as long as the employee is voluntarily attending school on his own accord.

Training Slashed Even As Employees File Lawsuits

One of the ironies of recession is that businesses tend to cut back their training of their employees at the same time that layoffs are spawning the filing of higher numbers of employee lawsuits. This is happening again during the present deepening economic crisis. Unfortunately, this is one of those situations of businesses “cutting off their noses to spite their faces.” (Do people still say that or am I showing my age?).

During 2008, studies show that average training expenditures in U.S. businesses decreased 11%. The studies don’t pinpoint which types of training, i.e. safety, skills or sexual harassment prevention, are being cut, but I can guess. Few companies understand the incredible effectiveness of providing employment law training to defeating expensive and time-consuming litigation. Therefore, if they ever offered training to their supervisors on avoiding discrimination or to their staffs on recognizing and preventing harassment or violence, they probably will slash that expense this year.

At the same time that the finance department is telling their bosses that the training budget has to go, employees are being terminated in record numbers. The national unemployment rate for January, which will be released tomorrow, will probably be around 7.5%, a 17-year high.*

And what do employees do after they are fired? They look for someone to blame, which in many cases will be the company that fired them. So they file unemployment claims, discrimination complaints, and lawsuits. During the fiscal year 2008, the Equal Employment Opportunity Commission already experienced a 15.2% annual increase in charges of discrimination and retaliation filed. Just wait until FY 2009.

I can already tell from my own law practice that even in the Texas Panhandle, which has been unusually sheltered from the current economic storm, employee complaints and lawsuits are increasing. Many of my clients are starting to face the investigative powers of the EEOC or the Texas Workforce Commission’s Civil Rights Division. Many of those charges will turn into lawsuits alleging discrimination and retaliation.

If you are regular reader of this blog, you know I always advocate written policies and employee training as your first line of defense against an employee lawsuit. If you start cutting your budget for those things, you may see short-term financial relief, but in the long run you are leaving your company very vulnerable to very costly employment lawsuits.

*Note from February 6, 2009: As it turned out today, the national unemployment figure was even higher: 7.6% for January 2009. That means that almost 600,000 jobs were lost in January. That is the worst showing for number of job losses since 1974. In all, 3.6 million Americans have lost their jobs since this recession started 13 months ago.