The #MeToo Rep: M&A in the #MeToo Era 8-28-18

https://www.jdsupra.com/legalnews/the-metoo-rep-m-a-in-the-metoo-era-16367/
Bruce’s Summary: Again, as I said in January of this year, “Well 2018 is here and workplace harassment and retaliation allegations are still rolling in. It seems the talk is that everyone is still waiting for more workplace harassment and retaliation complaints to surface and surface they will.”
So, has anything else changed? Well let’s say you are in the process of selling your company, everything is coming together, financing is looking good and you get an additional request.
You get a “Weinstein Representation” or an “MeToo Representation” request about any prior and/or current ongoing complaints or allegations, which previously were rarely brought up, if at all. But wait, as a normal standard operating procedure you have already responded that you don’t have any ongoing litigation or threats of litigation. Yes, you did respond but it’s no longer enough, we’re in a different world today and what you may have thought was previously addressed and settled is now being asked to be disclosed as part of the due diligence process.
The author provides a great overview of the potential outcomes that can positively and/or negatively affect the value associated with the sale of a business.
For HR Professional’s it’s a wakeup call and an opportunity to take a lead role in ensuring that their organizations understand and instill “Best Practices” when “MeToo” type allegations are alleged.
By being proactive, HR Professionals can monitor and drive policy development, provide live training for executives, ensure inappropriate manager behavior is addressed earlier, train employees how to speak up if they become bystanders and the use of outside investigative experts is a positive in todays “MeToo” environment. “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

New Polls in the #MeToo Era Suggest 3 Changes to Human Resources Practices and Investigations

https://www.jdsupra.com/legalnews/new-polls-in-the-metoo-era-3-important-48550/

Bruce’s Summary: Well, we’re more than half way through 2018 and workplace harassment and retaliation allegations are still rolling in and so are the polls on this critical subject. The author does a good job of bringing to our attention several polls including the Equal Employment Opportunity Commission’s estimate that 90 percent of women who have been harassed never report it. It would appear that with the #MeToo movement bringing this subject to national attention and the EEOC’s directed focus on this matter, the percentage of reported incidents is increasing.
The author focused on three key areas that may help increase awareness and more reporting. The first is more effective and proactive training (on the front end), second, as a result of a number of surveys, it is recommended that employers increase leadership training in specific areas like mentoring and coaching. The third, being accessible and credible investigation procedures (on the back end).
For HR Professionals and small business owners, the author gives a good overview for tweaking their current investigative process. First, focusing on selecting the right internal investigator or accepting the fact that they do not have the right internal talent and focus on using an outside neutral investigative resource. Second, understanding how critical it is in assessing credibility; third, how to deal with a “superstar” respondent; and fourth; staying aware and adapting to new state or federal legislation on harassment.
As we all know in the past for HR Professionals and small business owners one of the biggest challenges was not the fact of getting the message down through the employee ranks but more getting the message to permeate up the executive ladder. It no longer is acceptable for the executive ranks to ignore or not take such allegations seriously. Everyone is watching.
In addition, as more allegations move up the executive ladder, employers must ensure that a clear recognition of neutrality of any investigation is paramount to the individuals involved, work environment and organization. Remember, one clear signal of neutrality of the investigation, especially within the executive ranks, is the use of an outside neutral investigator. “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 First “Me Too” Verdict in New York Should Send a Strong Message to Managers and Employers

https://www.jdsupra.com/legalnews/the-first-me-too-verdict-in-new-york-52705/Bruce’s Summary: As I said in January, “Well 2018 is here and workplace harassment and retaliation allegations are still rolling in. It seems the talk is that everyone is still waiting for more workplace harassment and retaliation complaints to surface and surface they will. The tip of the iceberg is glaring and what’s underwater is yet to clearly surface and continue to raise more eyebrows with the shock of who it may be. Today, no one is shielded by the nature of their position, their status or current reputation, as has been seen of late.”
Although the case comes out of New York, the verdict will have a resounding effect. It appears that the jury didn’t find the individual respondent and university guilty of sexual harassment or gender discrimination (as alleged), but both were found to be guilty of retaliation and owed punitive damages totaling $1.25 million in damages.
The author notes that, “However, one key piece of evidence seemed to be a series of emails which Bekaert (Respondent) had written about the plaintiff, where he made very critical comments about Ravina (Plaintiff) and her work.”
The author suggests and provides examples for employers and HR Professionals to use in reviewing their current affected policies, procedures and practices. The message includes addressing inappropriate manager behavior earlier in the process, realization of how negative email and texts can be, empowering bystanders to speak up, consider using outside investigative experts to investigate allegations when necessary, making sure management understands liability for both the corporation and individual mangers, recognize the seriousness a retaliation claim may bring in potential liability and invest in live training for executives.
“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

“A Shield or a Sword? The Role of Performance Evaluations in Employment Litigation”

https://www.jdsupra.com/legalnews/a-shield-or-a-sword-the-role-of-67229/

Bruce’s Summary: Performance Evaluations – for some managers a curse when the review is not so good and for other managers a blessing when the review is glowing and/or outstanding. But, what is it really good for in today’s litigious society? Originally, its purpose was to annually help employees understand how they were progressing overall in their job performance by having an annual one-on-one meeting with their manager and covering areas of their job where they were doing well in overall performance expectations and areas of their job where they could improve in overall performance expectations.
During my 35 years in HR I found two to three camps who had opinions on the subject of having an organizational Performance Review Program.
The first and most vocal were the managers who hated (yes hated) the concept of even doing performance reviews. Many times, the reason was that these particular managers only spoke with their employees annually anyway and now were being forced to actually talk to and ultimately discuss with one or two employees their poor performance issues. Naturally these particular employees were always upset and sometimes angry about being surprised and punished by a lower rating.
The second group of managers were less vocal because they had open communication lines with their employees and any issues affecting their employee’s performance, attendance or behavior were addressed at the time the issue occurred. What they didn’t like the was the paper trail required for documentation.
The third group felt all their employees walked on water and deserved outstanding ratings and never had a problem that elevated to the level of a performance related discussion. As everyone knows, this approach didn’t meet the forced (bell curve) performance rating criteria scale. However, it gave the manager the excuse that he/she fought the good battle and upper management made them restructure the ratings, allowing the manager to play the victim role.
The author gives a good overview of the legal repercussions that can occur when litigation comes into play for an employer. Documentation is needed to show a reasonable defense to alleged charges raised by an affected employee, past or present. As the author shows the timing of performance reviews is critical along with the language used in describing performance issues and allowing something as simple as providing an employee the opportunity to respond, if needed. “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

“Why the ‘Equal Opportunity Jerk” Defense Should Be a Last Resort for Employers”

https://www.jdsupra.com/legalnews/why-the-equal-opportunity-jerk-defense-17124/

Bruce’s Summary: First, does this sound like a familiar subject? Well, I commented earlier this month on the same subject, “Jerk Managers” and yes, it’s still timely. Please no names, but do, as an HR Professional, share this write up and the other one on my web page on this delicate subject of “jerk managers” with your CEO/CFO. Both authors do a very good job of explaining the basic costs of doing business 101 in a legalized way.

The most fascinating thing by the author in this write up is the apparent number of times (unfortunately, I’m not surprised) after an official EEOC charge or lawsuit is received by the company accusing a manager of discriminating against an employee, the response received by the defense attorney from management is, “yes, the manager treated the plaintiff horribly, but he does that to everyone he supervises.” As I have commented in the past, “there are no secrets”, there’s just short term memory loss until something blows up.
https://www.jdsupra.com/legalnews/why-the-equal-opportunity-jerk-defense-17124/
By sharing this timely subject with those in the know, something more positive might just occur within the work environment that could increase revenue and productivity. Just think if management had addressed such inappropriate behavior when it first began, even the “Jerk Manager” may have been saved but more importantly ROI could have been positively affected through an increase in morale, engagement, retention and who knows maybe something good said about the organization on social media. Employees might even start enjoying coming to work, what a concept! “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

“National Labor Relations Board’s General Counsel Issues Guidance on Employer Handbook Rules” 6/11/18

https://www.jdsupra.com/legalnews/national-labor-relations-board-s-41767/

Bruce’s Summary: On June 6, 2018, the NLRB’s General Counsel issued a Memorandum (18-04) announcing a new standard for analyzing whether a work rule violates employee’s rights under the NLRA in reference to the Board’s recent holding in “The Boeing Company, 365 NLRB No. 154 (2017).
According to the author, the new standards focus on the balance between the rule’s negative impact on an employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.
The NLRB breaks out each of the three categories identified and gives examples of lawful rule language, unlawful language and certain rules that warrant individualized scrutiny. For those HR Professionals with responsibility for Employee Handbook revisions, you don’t usually get a detailed blue print to work from. You have one now. “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 Era of the Jerk Manager Is Over 5/30/18

https://www.jdsupra.com/legalnews/the-era-of-the-jerk-manager-is-over-17054/

Bruce’s Summary: First, interesting article and somewhat timely. A subject normally only talked about in the organizational halls but not publicly, even though everyone in the organization knows who it is. Who it is, has connections, who it is, has power, and who it is, does it publicly to others. On the other hand, if a Jerk Manager doesn’t have the above, they aren’t around very long, they do literally disappear from the organization rather quickly.
During my 35 plus years in industry, although few and far in-between, I ran across my share of Jerk Managers, Directors, Vice Presidents and Chief Executive Officers. They all had something in common, the lust for personal power and control. In every case, the individual was well known throughout the organization for such bad behavior. Once it was recognized that the organization (executive management) was more interested in letting the Jerk, regardless of management title, stay because of their positive impact on the bottom line, a strange thing began to happen, the best and brightest began leaving. In the past it was just easier to find another job and move on.
However, as the author rightfully shows today with easy access to social media there are even less secrets and the positive or negative political exposure is instant. For organizations, instant means very little time for damage control tactics and reputational coverage. It is truly in one’s face instantly and per the author, the #MeToo movement has shown how quickly the damage can occur.
Today, for those HR Professionals who are facing such challenges within their organization there is more than enough public data available to help HR do a cost analysis of potential liability in legal costs and reputational damage. Oh, yes and not to mention going back and showing the “Ice Berg Theory” of the real cost! When one adds in the drop in morale, loss in productivity, bad social media public relations and turnover, etc. the underlying costs can really skyrocket. Yes, HR it is your time to help your senior executive staff and/or board realize the long-term positive costs is getting rid of the Jerk Manager and the author gives some good examples of how to do just that. “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

Don’t Stand So Close to Me: Ten California Sexual Harassment Bills to Watch 5/18/18

https://www.jdsupra.com/legalnews/don-t-stand-so-close-to-me-ten-34086/

Bruce’s Summary: Well if you want to know what is on the mind of California legislators for employers, look no further. This article certainly gives a clear picture of what California employers should expect over the next seven to eighteen months concerning new legislation on sexual harassment. The authors focus on ten key California Sexual Harassment Bills currently pending to help employers understand what they may be facing in months to come.

The authors do a good overview of what employers should expect and therefore be prepared to implement if they haven’t done so yet. Although not every bill may pass, some are going to and HR professionals and smaller organizations who don’t have HR support should be cognizant and preparing ahead of time for proper implementation of the new legal requirements coming.

One example given is while employees today may be personally liable for Fair Employment and Housing Act (FEHA) harassment claims under existing law, Senate Bill 1038 would extend personal liability to employees for FEHA retaliation against a person who filed a complaint or opposed a prohibited practice, including alleged harassment or discrimination.

Another example given is Senate Bill 1300 which would amend FEHA to (1) allow a plaintiff to sue her employer for failure to prevent discrimination and harassment without needing to prove that she actually endured any discrimination or harassment; (2) prohibit a release of FHEA claims in exchange for a raise or bonus, or continued employment; (3) require all employees – regardless of size – to provide harassment prevention training and required times to provide training. In reference to regulatory type training on such subjects as anti-harassment and retaliation training, more positive results were always achieved when the training was live and interactive.

Lastly, Assembly Bill 1870 is given which expands the statute of limitations for an employee to file a DFEH administrative claim from one year to three years.

However, regardless of the number of additional laws that get passed the culture and direction of any size organization starts at the top. As I have said in the past, we all know for HR Professionals and small businesses one of the biggest challenges is not the fact of getting the current mandated legal messages down through the employee ranks but more getting the message to permeate up the executive ladder. It no longer is acceptable for the executive ranks to ignore or not take such allegations seriously. Remember, everyone is watching. “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

Be Prepared for Calls from the DFEH Regarding Your Anti-Harassment Policies

https://www.jdsupra.com/legalnews/be-prepared-for-calls-from-the-dfeh-61719/

Bruce’s Summary: A new process developed by the California Department of Fair Employment and Housing (DFEH) was implemented in April 2018. The DFEH now conducts random telephone interviews with employers about their anti-harassment and diversity policies. As the author indicates, this is an outgrowth of the DFEH’s Task Forces on the Prevention of Sexual Harassment in the Workplace.

The author gives a good overview for employers and HR Professionals of the questions they may receive from the DFEH and how to handle the process. Interview participation is not mandatory but whether or not an employer decides to participate they should prepare their frontline personnel to respond appropriately. Once the interview is conducted it might be very difficult to edit.

The author also shares a refresher on the importance of record keeping when providing different types of mandatory sexual harassment training for those employer’s with over 50 employees. The author further shares their thoughts for those employer’s with less than 50 employees. In today’s litigious climate relating to harassment, the first line of a good defense for employers is having training and policies in place and documented regardless of the organization’s size.

For Employers and HR Professionals, now is the time is to ensure their house is in order for responding to workplace harassment complaints. If there ever was a time to ensure both the “I”s are dotted and the “T”s are crossed in an employer’s training and policies, it’s now.

One note, in my experience, reference to regulatory type training on such subjects as anti-harassment training, more positive results were always achieved when the training was live and interactive.

In addition, employers must ensure that a clear recognition of neutrality of any investigation is paramount to the individuals involved, work environment and organization is to ensure the investigation is prompt, impartial and thorough. One clear signal of neutrality of the investigation, especially within the executive ranks, is the use of an outside neutral investigator. “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

Ninth Circuit Rules Equal Pay Act Bans Any Consideration of a Candidate’s Prior Compensation in Setting Wage Differentials 4-11-18

https://www.jdsupra.com/legalnews/ninth-circuit-rules-equal-pay-act-bans-20282/

Bruce’s Summary: The Equal Pay Act, a federal law aimed at abolishing wage disparity between men and women has been in place since 1963. Let me say that again, 1963. On April 9, 2018 the Ninth Circuit Court of Appeals issued a decision that an employer may not consider a candidate’s prior compensation when establishing prospective salary and wages.
The Equal Pay Act requires that men and women may not be paid differently for equal work. The authors review the exceptions in the act and the particular exception the court focused on being, “a differential based on any other factor other than sex.” The authors indicated that the court’s decision and new holding that a candidate’s prior compensation may not be considered as a factor under this “catchall” category.
The authors further indicate that the court’s decision, “not only bans an employer from basing wages on the candidate’s prior compensation, it stretches further in holding that, in the Ninth Circuit at least, such information cannot even be considered as one of a combination of factors in justifying wage differentials between male and female employees.”
The authors close with reminding the audience to not forget that, “the Equal Pay Act is a ‘strict liability’ law and that employers will be held liable even if they had no intention of discriminating against 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