Category Archives: Human Resources

Managing Sexual Harassment Claims in the #MeToo Era


gear-67138_1280Now that I am only posting twice a month, I have less opportunity to comment on news issues that affect corporate management. But the #MeToo movement accusing many public figures in the entertainment and political world of sexual harassment has had an effect on other workplaces as well that is important to recognize.

I won’t list all the men (and occasional woman) outed for their past behavior. What is more important is how corporate managers and Human Resources professionals should respond going forward.

With the increased visibility of sexual harassment in a variety of workplaces, more employers are likely to see claims raised by their employees. The same was true in the weeks after Anita Hill’s allegations of harassment during the 1991 Clarence Thomas Senate confirmation hearings. Even though Senate confirmed Justice Thomas’s nomination to the Supreme Court, sexual harassment became a topic in many workplace discussions that year.

In some ways, corporations are ahead of politicians in addressing harassment issues. Ever since the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986), sexual harassment claims have been serious risks in the workplace.

And ever since the companion cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), employers have had a framework for how to minimize their exposure to claims of harassment based on the creation of a hostile work environment. Elements in that framework include:

  • Having a strong anti-harassment policy
  • Making it easy for victims to raise claims to someone other than the alleged harasser without fear of retaliation
  • Training all employees regularly on what the policy is and how to use it
  • Taking every claim seriously and investigating thoroughly, and
  • Taking appropriate action, if harassment is found.

And yet, even with these policies and practices in place, navigating harassment claims remains a minefield.

In the past thirty-some years, I have handled complaints against everyone from high-level executives to frontline employees. The #MeToo movement emphasizes that no one gets a free pass on harassing behavior.

I have dealt with everything from completely false accusations, to mentally ill employees alleging harassment because they are paranoid, to workplace flirtations and dating gone wrong (probably the most common problem), to quid pro quo demands in exchange for advancing a woman’s career, and even cases involving rape of a coworker.

When an allegation of harassment first arises, there is no way to know which situation one is dealing with. Sometimes the facts become clear very quickly, but other times the truth is hidden in murkiness. The standard is not “beyond a reasonable doubt” but what is “more likely than not”—is there a credible complaint of harassment and what actions are necessary to stop it from occurring again?

When the allegations of harassment are false, the male (99% of alleged harassers are male) feels wronged and his career can be damaged through no fault of his own. And when the allegations of harassment are true, the woman feels disbelieved and disrespected by the slow pace of a thorough investigation. When the allegations cannot be proven one way or the other, no one feels the process has worked. Whatever the outcome of the investigation, coming to the wrong answer, or not addressing the problem with appropriate action, taints the workplace.

So what are managers to do?

The best way to handle a claim of harassment has not changed in the #MeToo era from the steps outlined in Burlington Industries and Farragher. Take every claim seriously. Treat all parties involved with respect. Do your best to find the truth.

And above all else, make it clear from your own behavior that harassment in the workplace—harassment of any type—will not be tolerated. Stop the jokes, whether they be sexual or racial or homophobic. Treat every employee in the manner you want your loved ones to be treated at work.

In addition, in the age of smartphones and social media, recognize that anything you say or do might someday become public. Would you be proud to have your language or behavior show up on someone’s Facebook feed?

Once you as a manager are modeling the appropriate behavior, expect your employees to do the same.

It all comes down to company culture. Make sure yours does not tolerate harassment of any type.

What changes have you made to how you handle sexual harassment claims because of recent publicity on the issue?

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Dealing with the Flu and Other Infectious Diseases in the Workplace


FluIQThe cost of the flu on American businesses is staggering. One article states that the flu causes 100 million lost work days each year. Because about two-thirds of the time lost is taken as paid sick days, employers loss over $10 billion in productivity. Meanwhile, the other third costs employees $6.8 billion in lost wages.

This year’s flu season is one of the worst in modern times, according to most news reports. As someone who suffered through it last month (despite a flu shot in September), I am sympathetic to those who get sick. I was fortunate that my schedule allowed me to stay at home for a week, but many workers don’t have that flexibility. What should employers do to manage through flu seasons?

OSHA provides basic recommendations for those who don’t work in healthcare (who obviously need to use greater precautions). In general, OSHA recommends that employees exercise basic hygiene and avoid contact with those who are ill.

OSHA further suggests that employers do the following:

  • Promote vaccination
  • Encourage sick workers to stay home;
  • Promote hand hygiene and cough etiquette
  • Keep the workplace clean
  • Address employee travel concerns.

The CDC and NIOSH have published similar guidelines for employers.

Managers, how does your workplace measure up? At a minimum, employers should maintain high standards of workplace cleanliness and offer vaccinations free or at minimal cost to employees through medical plans. But how does your workplace culture handle employee absences and travel issues?

Too many employers set performance goals that do not tolerate absences that don’t amount to FMLA-covered serious health conditions.

allergy-18656_640For example, I never sought medical treatment for my illness last month and didn’t take any medications other than over-the-counter remedies. Yet for three days I was unable to concentrate on much, and I didn’t have any energy for several days after that, though I did get quite a bit of work done at home during my recuperation.

In fact, about 80% of sick employees go to work for part of all of the days they are sick.

Does your workplace make maximum use of flexible work practices? Granted, some jobs lend themselves more to flexibility than others. But where working from home, reduced or shifting hours, or other flexible arrangements are possible, are your employees encouraged to use them when they are ill? What about when their children are sick?

And do your leave policies permit machine operators, technicians, and others who must be in the workplace enough sick days to avoid spreading illness to others on your premises? Encouraging good attendance is important, but it shouldn’t be the primary measure of successful performance.

One employee in the workplace who misses two or three days from work is preferable to that employee infecting five other employees who then each miss one day. The cascading effect of contagion is much more costly than dealing with sick employees on a more humane and flexible basis. And, as the statistics cited at the top of this post indicate, the total costs are huge.

How do you think employers should balance productivity and flexibility when dealing with sick employees?

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Favorite Firings: Stray Discriminatory Comments by Management Complicate Litigation


operation-540597_1280In the Wolters Kluwer Legal & Regulatory newsletter for December 4, 2017, there were three cases reported that dealt with comments by management personnel about employees. In each case, when the employee sued, the employer was unable to get past a motion to dismiss or a motion for summary judgment. Thus, in all three cases, the company faced lengthy litigation that might have been avoided, had managers been more careful with what they said.

THE FACTS:

In Creese v. District of Columbia, Case No. 16-2440 (RMC), D.C.D.C., Nov. 11, 2017, a corrections officer alleged that he was fired because he was not “manly” enough. His supervisor had made a few comments such as, “[n]o pretty boys needed in jail, so you need to take your earrings out.” The judge found that plaintiff produced enough evidence of impermissible gender stereotyping to survive a motion to dismiss his Title VII and Section 1983 claims.

In Sestak v. Northwestern Memorial Healthcare, Case No. 16-C-6354, N.D. Ill., Nov. 28, 2017, plaintiff Sestak, a labor and delivery nurse, alleged age discrimination after she was discharged for cause. She claimed that an unidentified individual stated that “older nurses would have difficulty” complying with new guidelines because older nurses “are too slow and spend too much time with patients” and that one of her supervisors stated that “older nurses’ often have difficulty understanding when the mother and baby become separate patients.” The court denied the employer’s motion for summary judgment.

In Carter v. A&E Supported Living, Inc., Case No. 16-00574-N, S.D. Ala., Nov. 29, 2017, a nurse was removed from the shift schedule at a group home for intellectually disabled individuals and then sued for pregnancy discrimination. She cited supervisors’ comments to her as evidence that she was removed from her work schedule because of her pregnancy and/or the related “high risk” conditions that the supervisors believed her pregnancy presented. One supervisor stated plaintiff “was at risk to be hurt and [she] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk…” Plaintiff was required to provide medical documentation that it was safe for her and her unborn child for her to perform the duties of her position. The judge denied the defendant’s motion for summary judgment.

THE MORAL:

The general legal standard is that stray comments in the workplace do not automatically lead to violations of the discrimination laws. However, they can be evidence of a discriminatory intent. And, of course, the more egregious and frequent the remarks, the more likely courts are to find liability. I’ve written other posts (see here and here and here) about how supervisory comments can get their employers into trouble.

In each of these cases, the employer put forth nondiscriminatory reasons for the actions taken against the employee. But the existence of the supervisors’ comments about pregnancy or gender or age complicated the cases enough to let the judges refuse to grant the defendants’ dispositive motions. The employers may end up winning these cases, but they face lengthy and expensive litigation before they do. Settling the cases may prove to be the better option.

Moreover, in the environment we face today, with heightened sensitivity toward sexual harassment and discriminatory remarks, employers would be well advised to re-emphasize the need to avoid even casual comments about employees’ health, appearance, and any other topics that might touch on a protected status.

It’s a shame that we must be so careful in the workplace and avoid many topics of everyday conversation, but it’s the safest course. As demonstrated by these three cases decided by different courts in recent weeks, supervisory comments continue to present litigation challenges to employers. It is best to involve Human Resources and lawyers if there is any question about what topics are permissible to discuss.

What’s your opinion on the current state of conversation in the workplace?

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Is HR Still Relevant? Only If We Can Keep Up With the Speed of Change


HR wordleThis past summer, I read an article on TLNT.com asking “Is there still a need for HR?” Of course, as an Human Resources publication, TLNT.com answered yes.  And as a former HR executive, I think the answer is yes also.

Then I read another article on McKinsey.com on getting ready for the future of work. This article focused on the increase of artificial intelligence and what that will mean for organizations in the years ahead.  According to McKinsey, at least 30 percent of the activities associated with most occupations could be automated—including knowledge tasks.

It dawned on me that in my working career of thirty-some years, there have been two major shifts in what constitutes work for many people. The first shift arose with the computerization of what used to be manual tasks, vastly increasing the productivity of repetitive work. The second shift came with the speed of communications and data transfer, so that now many roles can be performed anywhere.

It could be that artificial intelligence will be a third momentous shift in work, if machines in the future will not only perform the processing tasks that humans now do, but also the thinking and conceptualizing roles that we have assumed differentiated human beings from non-human.

These huge changes in what constitutes work are significant because they have happened so rapidly. Shifts of this magnitude used to come only once in a century or every few centuries. Think of the Industrial Revolution, when machines started doing what human and animal labor had done before. Think of how locomotion shifted from wind or animal power to motorized power. We now move as fast as we can find power to move us—on land, water, air . . . and even space.

Why do I raise these subjects in a discussion about Human Resources?

HR signBecause to remain relevant in the future, HR must have ready the right talent the organization will need at the right time in the right place. We have barely dealt with the skill sets needed to handle digitization. We still don’t really have our arms around the globalization of the workforce permitting employees and those in the gig economy in disparate locations to form project teams that ebb and flow as the work requires. Yet we may soon be asked to manage the intersection between human and artificial intelligence, when most HR people have no understanding of the possibilities of AI.

And we need to help employees prepare themselves to adapt to changing and ever more complex roles. Job changes in the future will be less about moving from company to company in the same field and more about complete shifts in what work we do and how we do it.

Are HR’s abilities to predict the skill sets of the future sufficient to the task of helping employees keep up? I doubt it.

HR strategists today say that fostering organizational culture is one of the core strengths HR can bring to an organization. But are we prepared to develop a global culture that incorporates not only human capabilities but also includes AI in the work world of tomorrow? I doubt that also.

The McKinsey article argues that lifelong learning is the only way that humans will maintain their employability in the future. That goes for HR professionals as much as for any other worker.

As Jeff Dieffenbach, associate director, Massachusetts Institute of Technology Integrated Learning Initiative, is quoted as saying in the McKinsey article:

“While change is accelerating, one thing that is definitely not is the neuroplasticity of the brain. In other words, the rate of change in the world may have surpassed the speed at which the human mind can process those changes.”

That goes for HR brains as well as those of other workers. Frankly, I’m not sure HR will survive in a recognizable form. The machines may take over from us.

What do you see ahead for HR?

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Remembering September 11: Lessons in Crisis Management


National_Park_Service_9-11_Statue_of_Liberty_and_WTCI’ve written several posts about crisis management, so it surprised me to realize that in over five years of blogging, I’ve never written about my experience on September 11, 2011. I’ve barely mentioned that date at all, even though the heartbreaking day not only shook me personally but provided a huge opportunity for learning as an HR executive.

I lived and worked in the Central Time Zone at the time, an hour behind the East Coast. I was in an early meeting with other members of the Human Resources staff in my company that Tuesday morning. Shortly after we started the meeting, an administrative assistant came into the room to tell us that an airplane had struck the World Trade Center. We acknowledged the tragedy, but continued our meeting. Then a few minutes later, she reported that another plane had struck the other tower. At that point, it was clear that the collisions were intentional—the U.S. had been struck by terrorists. We stopped our meeting, and those of us on the company’s crisis management team, including myself, gathered to determine the impact on our company.

It might seem that a corporation a thousand miles away from the attacks should not have any issues, but our multinational company had locations around the U.S., including on the East Coast. We had employees traveling on business. We had thousands of employees throughout the nation concerned about family and friends near the affected sites. And everyone, of course, was fearful of another strike.

Through the course of that day, we worked on the following issues:

— We immediately began providing the best information we could to employees. For the first time ever, we allowed the intra-company communications monitors at each major location to broadcast national news, rather than static screens of company news. A few departments had televisions going all day long, but we wanted employees working in departments without televisions (i.e., most employees) to have ready access to information as well. Yes, productivity suffered, but it would have anyway, and making the information easily accessible was one way to show employees we cared about their concerns.

— Our Travel Department searched the travel records of all employees away on business and contacted them to determine if they were safe (they were). Because all flights in the U.S. were canceled for the next few days, we also started making alternative arrangements get those employees home. In many cases, we had to authorize one-way rental cars from the coasts to get people home. These were expensive trips, but we knew the most important thing was getting employees back to their families during this national crisis.

— We also assisted vendor and customer representatives on our sites to make arrangements to return to their homes also.

— We prepared a video message for our CEO to deliver to all employees. By midafternoon on September 11, our communications experts had recorded our CEO in a video that we put on our monitors and on the company intranet site. The CEO conveyed his sympathy to those inside and outside the company impacted by the catastrophe and said that he and other corporate officers were as devastated by the day’s events as everyone else. He also provided information on how we were handling the crisis — that the company had located all of our traveling employees and determined none had been on the downed planes and that we were working to bring the others home as quickly as possible.

— We brought in grief counselors to our major locations to conduct group sessions with employees who were emotionally distraught by the day’s news, and provided information on our Employee Assistance Program in case employees wanted more individualized counseling.

Our crisis management team continued these activities for several days, until the nation and its transportation system returned to normal. But, of course, nothing has been the same in the sixteen years since those awful events.

I learned that day the reality of the importance of communications during a crisis. It is one thing to read articles on crisis management, like this one. It is another thing to live it and to know that what you are doing is having an impact, for better or for worse, on the morale of your organization.

I learned it is important to not only communicate facts but empathy as well. Company leaders and managers must seek out and pass on accurate and timely information. But good leaders must also be emotionally congruent with others in their organization. This emotional support is critical, even though at the same time management is providing direction and channeling people’s energy toward productive activities. And leaders must recognize that sometimes the most important thing is to pause and acknowledge feelings before productive behaviors can resume.

A crisis can be an opportunity to bring an organization closer together, but only if it is managed well.

What lessons have you learned while handling a crisis?

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Employer Health Care Benefits — Preparing for 2018


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I last wrote about health care in late March, shortly after the House of Representatives failed to bring the American Health Care Act (AHCA) to a vote. Since then, after a few amendments, the House did pass the AHCA, but with all the other brouhahas in Washington over the last few weeks, it’s questionable whether the Senate will get to health care anytime soon.

There are some good provisions in the AHCA as passed by the House. Among other things, the AHCA makes the following changes to Obamacare:

  • The individual mandate was repealed, as was the employer mandate;
  • The 2.3% medical device tax was repealed;
  • The net investment tax was repealed, as was the .9% Medicare high earner tax;
  • The Cadillac tax for expensive plans was delayed (and will probably never be permitted to take effect, since neither Republicans nor Democrats like this provision); and
  • Health Savings Accounts were expanded, effective in 2018

All of these provisions provide less government control over the health care marketplace. In the long run, these changes would generally be helpful for employers.

Still, as most people recognize, without an individual mandate, some incentive is necessary to get healthy people to opt into health insurance before they get sick and to maintain that coverage. The AHCA continuous health insurance coverage incentive replaces the individual mandate penalty. This incentive operates much like HIPAA certificates of coverage. As long as they do not let their health insurance lapse for more than 63 days, individuals cannot be charged higher premiums because of preexisting conditions. Moreover, the premium penalty for the first plan year cannot exceed 30%.

There is an exception to this 30% limit, but the exception permits insurers to charge late enrollees with pre-existing condition higher premiums only if the state has waived the community rating rule and the state has established a high-risk pool to help people with preexisting conditions fund their coverage.

The AHCA is far from a perfect bill, and it is likely to face substantial amendments in the Senate before it comes to a vote in that chamber. And Congress has many other priorities this session as well. So what will happen with respect to health care legislation by the end of the year is anyone’s guess.

Nevertheless, we are at the time of year when many employers are examining their options for health plans for their employees for the year ahead. What should employers do in this time of uncertainty?

Obamacare, the Affordable Care Act, is still the law, so until Congress acts, employers must comply with the mandates and reporting requirements. With the individual mandate in place, employees will want to know their employer-provided health care options in a timely fashion.

Moreover, although the Cadillac tax has been kicked down the road and its ultimate implementation is uncertain, avoidance of the tax—or preparation for it—will take time to structure.

For 2018 at least, the current employer responsibilities are likely to remain in place. Employers must continue to manage their benefit plans, tweaking them as makes most sense for their workforce. There remain many reasons why employers should support their employees’ health and wellness if they want to be employers of choice.

Employers, what concerns you the most about health benefits in 2018?

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Favorite Firing: Failure to Rescind a Resignation


flag-28567_640Every once in a while, a difficult employee resigns, and his or her managers breathe a sigh of relief. The employer might have wanted to be rid of this employee, but there weren’t grounds to discharge the individual. But what if the employee wants to rescind the resignation—does the employer have to take the employee back? In Featherstone v. Southern California Permanente Medical Group, B275225 (April 19, 2017), the California Court of Appeals said no—once the employee resigns, there is no requirement that the employer allow the person to return.

The Facts: Ruth Featherstone worked for the Southern California Permanente Medical Group. She had had prior health problems necessitating her absence from work. Despite her absences, there is no indication in the Court’s opinion that she had any performance difficulties.

In mid-December 2013, she returned to work after an absence for surgery and recuperation. About a week after her return, she allegedly suffered a temporary disability due to an adverse drug reaction to medication. She claimed that while she was under the influence of this drug, she first orally resigned and then several days later confirmed the resignation in an email. At the time, her supervisors did not suspect that she was behaving abnormally and processed the resignation promptly so that Ms. Featherstone could receive her final paycheck in a timely manner under California law.

Unbeknown to any of her managers, Ms. Featherstone’s family noticed that her behavior was unusual, and she was rehospitalized. She was hospitalized for several days. On the day she was released from the hospital, she confirmed her resignation to her employer. It wasn’t until about five days after she confirmed her resignation that she told her managers she had been under the influence of medication when she resigned. Only then did she ask to rescind her resignation.

Despite the sympathetic circumstances of Ms. Featherstone’s request to rescind her resignation, the medical group refused to rescind it, because they did not think they had done anything improper in accepting it. As mentioned above, there is no indication of any problems with the plaintiff’s performance, so this reader wonders why the employer was reluctant to rescind the resignation.

Ms. Featherstone later sued, claiming disability discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). The trial court granted the medical group’s motion for summary judgment, and the Court of Appeals affirmed for two reasons: (1) First, the employer’s refusal to allow the plaintiff to rescind her resignation was not an adverse employment action under the FEHA, and (2) the plaintiff failed to show that the management employees who accepted and processed her resignation knew of her alleged temporary disability at the time.

The Moral: In this case, the employer’s good-faith action in accepting the resignation was upheld. As the California Court of Appeals said, for an employer’s action to be found to be a pretext for discrimination, the employee

“ ‘cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) To meet his or her burden, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” ’ ” and hence infer “ ‘that the employer did not act for [the asserted] nondiscriminatory reasons.’ ” ’

The California Court of Appeals first found that

“refusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.”

The Court of Appeals cited a California Supreme Court case, Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, for the proposition that only actions affecting a current employee are covered, not those affecting a former employee.

“[A]n adverse employment action is one that affects an employee, not a former employee, in the terms, conditions or privileges of his or her employment, not in the terms, conditions or privileges of his or her unemployment.”

The Court of Appeals also cited federal authorities under the Americans with Disabilities Act.

However, I am not sure the Court of Appeals’ reasoning is persuasive—another court might well find that former employees are covered for at least some purposes. If I were reviewing an employee’s request to rescind his or her resignation, I would probably analyze the situation more deeply.

At the very least, an employer should at least be sure there is no element of coercion in the resignation, no sign of constructive discharge. In addition, the employer should be sure there is no express or implied contract of employment and that the employee is truly an at-will employee. Both of these possibilities were examined by the Court of Appeals in Featherstone.

This case also turned on the fact that the medical group had no knowledge of Ms. Featherstone’s adverse reaction to the drug when it processed her resignation. Had her managers had some inkling of this possibility, they might have had a duty to inquire and to accommodate her situation by permitting her to rescind her resignation made under the influence of the medication—the Court in this case did not have to address that situation.

While this case will be helpful to employers who want to stand by an employee’s initial decision to resign, it will still be important for employers to investigate the circumstances surrounding both the resignation and the request to rescind it. Ultimately, this case may be more helpful when good employees resign than when problem employees resign in a pique and later want to return—and those are the employees the employer might most want to lose.

Have you had to deal with an employee’s request to rescind a resignation? What did you do?

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