Calvin Associates, Inc.

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Antitrust Violations in the Employment Arena May Subject Employers and their HR Personnel to Criminal Prosecution 11-14-16

November 30 2016, 6:50 pm

http://www.jdsupra.com/legalnews/hr-professionals-beware-antitrust-19951/

Bruce’s Summary: In several of my overviews I have indicated that the HR landscape continues to shift both in accountability and liability. Well, it can’t get any clearer than the above title suggests, HR Professionals are now on the firing line with newly revised DOJ and FTC policy shifts in enforcement priorities. Although, according to the authors such outlined conduct has always carried potential criminal liability (both for corporate and individuals) under antitrust laws that typically dealt with such violations through civil proceedings. Now, employers and HR Professionals are on notice that such conduct may now be investigated by a grand jury and prosecuted criminally. The interesting move by the agencies is clearly apparent for HR Professionals with the issuance of their “Antitrust Guidance for Human Resource Professionals”. The old saying that “ignorance of the law is no excuse” is alive and well.

With this HR landscape shift, it is critical for HR Professionals to grasp the current and future magnitude of this paradigm shift of accountability and potential personal liability for themselves. Also key is understanding what these policy shifts mean to the organization. Management and key HR Professionals must be trained and assigned in the decision chain of command as to whom could be affected within the organization on these policy changes and what potential liability means with the goal of proactively implementing processes to ensure going forward such violations become non-existent.

One important step is to ensure that you, as an HR Professional, review and understand how the organization’s D&O liability insurance works and how to be added on, if you’re not already. Remember, being identified by federal agencies totally changes the playing field. As you may know, companies and individuals, now including HR Professionals can be sued for a variety of reasons related to their company roles, including breach of fiduciary duty resulting in financial losses or bankruptcy, misrepresentation of company assets, misuse of company funds, fraud, failure to comply with workplace laws, theft of intellectual property, and lack of corporate governance. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

The Resignation Trap: Avoiding Unwanted Consequences When an Employee Resigns 11-2-16

November 07 2016, 7:18 pm

http://www.jdsupra.com/legalnews/the-resignation-trap-avoiding-unwanted-65915/

Bruce’s Summary: Assumptions are amazing, we all have them and usually, more times than not, they may not be correct because enough information may not have been collected prior to a person’s termination. The author uses a very interesting term for HR Professions to add to their check list, “snapping up” resignations. We’ve all had it happen at some point in our careers, someone says I’m done, we didn’t clarify what that meant to the person and followed the termination process and the employee later through a governmental agency and/or their attorney says they didn’t mean it. Usually there are several issues raised but the key one is usually about Constructive Discharge and usually a few other things the employee forgot to tell us but somehow told others in the organization that may or may not have a material effect in reference to their separation. The author gives examples to consider prior to finalizing what may have been recognized as the person’s resignation. When I have had someone upset want to end it immediately, I’ve always requested the person sleep on it and give me something in writing the next morning. For the organization, this also is a defense to showing a good faith effort in allowing a “cooling off period.” As is understood, each situation is unique and should be handled as such and truthfully this hasn’t always made our management counterparts overly happy having to wait for the resignation, when we could have “snapped it up” so quickly. However, as said before, if we are working on developing and building solid partnerships with our management counterparts, this would have been discussed and understood by everyone affected prior to any emotionally charged meeting with an employee. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

 

Anti-Trust Laws Can Impact HR Departments 10-26-16

November 01 2016, 9:27 pm

http://www.jdsupra.com/legalnews/anti-trust-laws-can-impact-hr-64571/

Bruce’s Summary: Although this article is short, it brings home the fact the HR Professionals are once again being drawn to the forefront in facing legal risks of not only civil but criminal prosecution for sharing certain information or agreeing to certain conditions, as outlined in this article that may be construed as a violations of federal law. As the old saying, “ignorance of the law is no excuse,” knowing what will get you in trouble is more important. A review of the “Antitrust Guidance for Human Resource Professionals” is highly recommended and yes, it was written just for us.

Good article to brush up on your FTC and DOJ understanding and a good topic for training your managers in the future.   “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

US Doctor Held Individually Liable for Workplace Bullying 10-18-16

October 27 2016, 6:08 pm

http://www.jdsupra.com/legalnews/us-doctor-held-individually-liable-for-21690/

Bruce’s Summary: Although the case was decided in under another court jurisdiction outside of California, the fallout has the same potential. For those who engage in bullying beware, the times they are a changing. This subject continues to be prevalent in today’s news and although, as according to the author, “there is no law at this time against workplace bullying in the U.S.”, acts of bullying, allowed by an employer can be costly, if the parties hadn’t agreed to a settlement. My experience with bullying, over the years, is that most bullies like to have an audience around, it boost their egos and sense of power, but unfortunately for the bully, the witnesses to this type of inappropriate behavior make great witnesses.

This is a great example for HR Professionals to use in their management harassment training programs. Good article. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

 

Un-Enforceable Promises 10-7-16

October 13 2016, 2:52 am

http://www.jdsupra.com/legalnews/enforceable-promises-29490/

Bruce’s Summary: Good article with the author starting off by saying, “don’t make promises to your employees that you can’t or won’t keep.” The author provides several examples of how letting the process fall into a routine and failing to pay attention to the details can have uncertain and sometimes negative consequences for employers. With the theme today of everything being in writing, sometimes the rush to get something reference to a policy, procedure or employment contract out and/or signed can come back to haunt an employer if the process is not handled correctly.

The author also covered obligations of employees, related organizations, vendors and obligations created by government contracts and the importance of keeping track of what was promised by the employer.

One side note, HR Professionals should incorporate into their training for all supervisors, managers and support personnel a section on how to maintain and grow one’s credibility and maintain one’s reputation. The session should cover the negatives produced when things such as promotions, transfers, pay increases, time off, and leave of absences not be promised to employees unless the person doing the promising has complete authority to approve the item. Over and over again, a large number of management and other lead personnel have lost credibility and had their reputations tarnished in promising things that they never had the authority to approve. Usually, these things don’t seem like a big deal but can turn into on very quickly. Rarely does anything good come out of this.

“None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

 

It’s Time to Get Back to Basics: Keeping Your Workplace Free of Sexual Harassment 9-29-16

October 04 2016, 3:37 am

http://www.jdsupra.com/legalnews/it-s-time-to-get-back-to-basics-keeping-88011/

Bruce’s Summary: As has been said over and over since 1975 when the U.S. Courts recognized sexual harassment as a form of sex discrimination, it’s a violation of the law. It appears the only thing that has changed in roughly forty-one years is that the cost to employers has become more expensive in defending and/or settling such charges.

Three areas touched on by the author are right on mark, first, it all starts at the top, the top sets the tone and tolerance level for everything and always remember, there are no secrets. Human Resource Professionals can talk and present training on harassment and other regulatory required training and get documentation attesting that everyone’s received the training, but if the message among the executive ranks is that it shouldn’t be taken that seriously, this will be the message everyone hears.

The second important issue and at times one of the hardest jobs HR Professionals perform is internal investigations. Especially the investigations where allegations are raised against senior level executives. The logical move is to go outside for these type investigations because quite frankly there is usually a high level of political intrigue, both pro and con, circling around the alleged harasser. Sometimes the well gets poisoned before the investigation is ever started and sides are already drawn. A neutral outside third party remains both neutral and can avoid the political environment.

The third and at times most politically charged, is the remedial action. Oh, the number of discussions when the evidence is clear, but thoughts are, “it can’t be true, not this person”. He/she would never’ do this. This can open a large can of worms along the management credibility line and as is forgotten at times, everyone is watching and as said earlier there are no secrets. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Supervisor’s Remarks May Constitute Direct Evidence of Discriminatory Bias 9-22-16

September 27 2016, 2:03 am

http://www.jdsupra.com/legalnews/supervisor-s-remarks-may-constitute-18318/

Bruce’s Summary: Although this case was decided in another federal district court, the fallout has the same potential: Those who are considered the ultimate decision makers shouldn’t make comments or remarks that can be viewed as direct evidence of a discriminatory bias.

It is one thing for the Supervisor in conversation with the Plaintiff to say another individual got the promotion because they had management experience, but to add the second comment, “Plus you were on maternity leave for a while,” introduces a subject that is not work related. This is basic 101 of what not to say and this case would be a great example to use in supervisory training, by HR Professionals, in how off hand inappropriate comments that have nothing to do with work can cost the Supervisor as well as the organization.    “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.”

Ripped From the Headlines, Part II: Three Investigation Lessons to Learn from Recent Scandals 9-14-16

September 20 2016, 3:26 am

http://www.jdsupra.com/legalnews/ripped-from-the-headlines-part-ii-three-38029/

Bruce’s Summary: This author takes a different perspective in an age old issue of what happens when allegations are raised against, well let’s say those perceived as “special people” whether one who generates big revenue, key sports figures and/or heads of organizations. The author indicated that one common issue is “a company’s fail (ure) to create an atmosphere of truth telling.” As the author further indicated that just having conflict resolution policies and training is insufficient without also having an environment in which employees feel comfortable reporting issues and participating in investigations rather than actively being discouraged as in some of the examples given in this article. As we have said on numerous occasions, “there are no secrets,” someone always knows and yet, even today, there are people who will still try to protect those who abuse it the most. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.”  www.calvin-associates.com

 

Bosses Behaving Badly 9-8-16

September 16 2016, 7:27 pm

http://www.jdsupra.com/legalnews/bosses-behaving-badly-80996/

Bruce’s Summary: I recently said, “We’ve been dealing with sexual harassment literally forever and since the 1960’s legislation has continued to grow saying it’s illegal and will continue to get more costly for employers. However, even today, we somehow still don’t get it.”

Well, another example recently surfaced with Gretchen Carlson. The one common denominator I have found is that it’s rare that someone else isn’t actually aware of the offending individual’s behavior. And this person (people) defend it when confronted many times with some kind of lame excuse like the one given Carlson – that “she learn to get along with the boys.” So it’s not always the training, the people have had the training or at that level, just signed the paperwork saying they did, wink, wink. Regardless, once signed, it is documented evidence that someone had knowledge or should have recognized they were violating company policy and putting the organization in a potential liable position.

HR Professionals, when confronted with a senior executive or board member having allegations of sexual or any other type of harassment, should recommend that internal/external counsel be involved relatively quickly in the front end process. Once this occurs it’s relatively hard to sweep something as they say, “under the rug” thereby forcing to a degree, what shouldn’t have to be forced. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com

Employees Find “Cat’s Paw” Theory to be the Cat’s Meow 9-8-16

September 12 2016, 6:11 pm

http://www.jdsupra.com/legalnews/employees-find-cat-s-paw-theory-to-be-97949/

Bruce’s Summary: If you’ve not heard of the “Cat’s Paw” theory, then take note, another great reason to ensure thorough and complete investigations are performed. The author gives examples of some recent court cases that open the door a little wider for the theory to be used. One showing evidence that a superior influenced the employee’s termination and the other showing how an employer negligently gave effect to the retaliatory intent of a non-supervisory co-worker.

Whether the investigator is internal or external, the investigator has always had a fiduciary responsibility to conduct a thorough and neutral investigation. The author further emphasized to ensure that such investigations take into account possible retaliatory or discriminatory motives of supervisors and co-workers who provide information, especially if the investigation could result in an adverse action against an employee. Deciphering the gray, in an investigation, has and will always be a challenge for investigators in understanding a human being’s motives and intentions, however, as noted, the potential liability just got a little sharper. “None of the information contained herein should be construed as legal advice, nor are Calvin Associates consultants engaged to offer legal advice. If there is a need for legal advice, please contact and seek the advice of independent legal counsel.” www.calvin-associates.com