“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

Making Sure Your Company Is Not the Next Harassment Hashtag 4-5-2018

https://www.jdsupra.com/legalnews/making-sure-your-company-is-not-the-45944/

Bruce’s Summary: With all the allegations continuing to surface along with the growth of the “#Metoo” movement it’s time to step up in a proactive manner and ensure that your harassment policies and training material are up to date. No matter where allegations occur – from work environments in the private and public sectors in Hollywood or small town America – it’s not the time to ignore and hope such allegations go away.
The author gives a good overview and some great suggestions on better ways to open up communication lines between your organization and your employees. Employees need to feel comfortable that they can raise issues in a safe and secure work environment and that they are heard. An investigation must be prompt, impartial and thorough. However, this doesn’t mean at the end of the investigation you may be reporting what either the complainant(s) or respondent(s) wants to hear. The facts of the investigation will determine the outcome.
If an allegation is raised, regardless of the length of historical time involved, remember two things, 1.) Think about how you would want to be treated if you were the one raising the allegation(s) and, 2.) Focus on the facts surrounding the allegation(s), not the person’s personal style or demeanor or their work history, etc., which will come later, if needed, in the credibility phase. “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

Ten Ways to Prevent Sex Discrimination in the Workplace 3-19-18

https://www.jdsupra.com/legalnews/ten-ways-to-prevent-sex-discrimination-52045/

Bruce’s Summary: As has been said over and over since 1975 when the U.S. Courts recognized sexual harassment as a form of discrimination, that such discrimination was a violation of the law. It appears the only thing that changed in roughly forty-three years is that the cost to employers has continued to sky rocket in defending and/or settling such charges.
The author does a good job of providing an outline of steps (Platinum Rule) for hopefully preventing and responding to alleged discrimination or harassment in the work place. The 10 steps provide suggestions for reviewing and addressing communication processes, current policies, training techniques, equality issues and how to handle alleged complaints early in the process.
As Benjamin Franklin once said, “An ounce of prevention is worth a pound of cure.” “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

California Case is the Latest to Address Whether Worker is an Independent Contractor of Employee 1-19-18

https://www.jdsupra.com/legalnews/california-case-is-the-latest-to-18588/

Bruce’s Summary: Who literally doesn’t use independent contractors at some time or another? Using independent contractors helps companies offset short periods of spikes in volume and/or workload requirements, testing or potentially expanding new routes or known spikes in seasonal sales or volume, etc. It seems that with most workplace issues today it helps to have some type of checkoff list. Regardless of the subject matter using some form of checkoff lists ensures consistency and less chance for human error.

The author’s review a recent California case decision and provide just such an overview (checkoff list) that the court used in determining that a California claimant was an independent contractor and not an employee.

As the authors suggest, evaluating job classifications is complex and although the court decision has been challenged and is pending in federal district court in California the author’s checkoff list would be a good place for those who are responsible for determining job classifications to start and insure consistency of process. If you keep having to reinvent the wheel, you’re already in trouble, you just didn’t know it. “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

Me Too? Time for All Employers to Update their Anti-Harassment Policies | Ballard Spahr LLP – JDSupra January 22, 2018

https://www.jdsupra.com/legalnews/me-too-time-for-all-employers-to-update-21920/

Bruce’s Summary: 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.

However, one visible change in today’s work environment is a higher number of complaints are being openly and pointedly directed at the very top of the executive level regardless of industry or size. As we all know in the past for HR Professionals and small businesses 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.

For HR Professionals and small businesses, now is the time is to ensure their house is in order for responding to workplace harassment and retaliation complaints. The author(s) indicate that although employers may have standard harassment and retaliation policies and procedures currently in place and they may have worked in the past, they may not work so well today. If there ever was a time to ensure both the “I”s are dotted and the “T”s are crossed in an employer’s policies, it’s now.

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.

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. One clear signal of neutrality of the investigation, especially within the executive ranks, is the use of an outside neutral investigator.

The author(s) suggest and provide examples for employers use in performing an audit of their current affected policies and procedures, training, reporting channels and considering pros and cons of utilizing internal/external investigators. “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

Should You Look Outside Your Organization To Investigate A Sexual Harassment Complaint?

https://www.jdsupra.com/legalnews/should-you-look-outside-your-49767/

Bruce’s Summary: Interesting article from the New York Times presented by the author on the effectiveness and pitfalls of sexual harassment investigations being performed by a company’s internal human resource department.

The theme seems to be that more times than not, based on the fact we are dealing with human beings, the investigation itself can become entangled in political intrigue or the presence of an imbalance of internal power. At times, if not recognized, this type of behavior can result in a negative political effect on the internal HR person performing the investigation and/or the HR department itself.

During my 30 plus years of both performing internal and external investigations including sexual and harassment type allegations, the first question was the safety of the complainant and second as a HR Professional, was evaluating the internal political and power status of the parties (perceived or real) involved. Based on the evaluation, determine the best course to follow in either performing the investigation internally or using an outside neutral investigator. Third, if it was felt an outside investigator was warranted being solidly prepped to answer the management “why” questions with good business logic and reason. Here lies one of the litmus test for HR Professionals in being able to demonstrate an understanding of and speak the business’s fundamental language.

It’s not whether an individual or department can do the internal investigation itself, that’s not the point, the point is; are there enough political and/or power struggle issues that could potentially prevent someone as a HR Professional from effectively performing a through and complete investigation regardless where the evidence leads.

Core for any HR Professional is understanding the businesses basic language and next understanding it is the HR Professionals responsibility to develop and maintain solid Partnership relationships with their peers, counterparts and executives in building mutual respect, trust and inclusion. Once Partnerships are developed this allows for a more open and trusted dialogue regardless of the particular issue needing to be addressed. “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