Tag Archives: Training

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

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

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.