You’ve Got An Internal Sexual Harassment Complaint: Now What? 3-22-19

https://www.jdsupra.com/legalnews/you-ve-got-an-internal-sexual-42497/

Bruce’s Summary: Say you’re in a small or medium size company and suddenly, as a HR Professional, while busy doing your volume of tasks, a sexual harassment complaint has been alleged and you are tasked to drop everything and get this addressed. What do you do? Are you prepared? Where do you start? Are you the wrong or right person to investigate because of an alleged history with the complainant? Is it more prudent to hire an outside neutral third-party investigator? Is everyone internally to close to the alleged issue, after all everyone in the organization is family, right and at this moment what’s the big deal?
Hopefully, you have in place some outline, process and/or procedure for properly handling such complaints in a prompt, impartial and thorough manner or maybe not. For those who do have a process, the authors provide a good Best Practices overview to compare to your current policy. For those who fall under the maybe not category, the authors provide a great check off-list of best practices to consider. Other things can certainly be added and should be to fit your particular industry and/or organizational culture. The key is, as HR Professionals, we should always be prepared because unfortunately, it’s very evident when we aren’t. “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

Office Violence Is No Laughing Matter 3-12-2019

https://www.jdsupra.com/legalnews/office-violence-is-no-laughing-matter-71493/

Bruce’s Summary: As has been said before, unfortunately the subject of Workplace Violence just won’t go away and if not, what steps can we enact to protect ourselves and our employees to the best of our ability. The stakes just got raised and “soft targets” have grown to be an easier way to express a political or personal statement.
The author approaches this issue in the context of, as an employer, it is better to be prepared and taking a proactive stance when confronted with such issues rather than waiting until something escalates to the level of an emergency. The point of not being prepared is no longer an option.
The author refers to California Civil Procedure Code section 527.8 which defines workplace violence as assault, battery, or stalking, and permits employers to obtain a restraining order against “any individual” who makes a credible threat of violence that can reasonably be construed to be carried out at the workplace.
The author further refers to several things’ employers can do to manage potential workplace violence.
First, with the fact that according to the Bureau of Labor Statistics, over 70% of U.S. workplaces lack a formal policy to address workplace violence, don’t be part of this statistic. Develop a plan or policy!
Second, Train, train, train management and employees on early warning signs!
Third, follow written protocol and be proactive not reactive to any potential or real threat. The Author gives some good examples of what to do.
Fourth, don’t forget the power of restraining orders.
This is a good time to proactively develop a Workplace Violence Plan or Policy or reexamine your current Workplace Violence Plan or Policy and more than that, it’s a good time to do proactive employee and management training. Good overview. “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

“Rumors Run Amok: Poorly Managing Rumors of an Alleged Affair Opens Title VII Liability”

https://www.jdsupra.com/legalnews/rumors-run-amok-poorly-managing-rumors-94109/

Bruce’s Summary: First, although this is a Fourth Circuit Court ruling and not a Ninth Circuit Court ruling, the case itself is a great example of how a rumor can take on a life of its own within the work environment if not appropriately addressed. The author provides a great training case study for human resources to use in what not to do when addressing rumors within their workplace.
Also, part of HR’s professional responsibility when first evaluating whether the allegation(s) warrant an internal investigation is – can the investigation be performed in a neutral and fair manner or is key management too close to the individual(s) affected and/or the issue(s) alleged? This is not a good or bad thing, but it needs to be part of the impartial evaluation.
If I have learned nothing else over the last 35 years in human resources, the emotion never leaves the complainant, respondent and individuals involved, including at times those in management and this can cloud even the best of intentions. For HR professionals, determining if management is too close and addressing it in the initial evaluation phase is key in ensuring a prompt, impartial and thorough investigation.
HR Professionals perform many roles within their sphere of influence and fortunately or unfortunately, at times, this includes having the conversation in helping management understand that they may be just too close to the person(s) or the issue(s). If it is recognized that management is too close, a good defense in protecting all concerned is the use of an impartial outside neutral investigator.
The author does a good job in showing the company’s “many missteps, as the company fumbled with the rumor” and provides key takeaways that can be incorporated into a “best practices” HR process. “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

“Five Interview Question Don’ts For California Employers in 2019”

https://www.jdsupra.com/legalnews/five-interview-question-don-ts-for-50655/
Bruce’s Summary: Well another year and more things for California employers not to do. However, it’s better to know what has changed than to mistakenly continue to make such mistakes, it can be costly. The author presents a good overview that HR Professionals can use in their management training programs. Whether asking about one’s salary, where someone is from, when they graduated, if convicted of a crime or whether they are married or not is now taboo. Some cities in California have even more restrictions, so knowing what new city ordinances affect your business is a prudent thing to know as well. A good review of all human resource forms would not hurt either especially old applications. It’s just time to get those things that we previously meant to clean up taken care of. Don’t forget the old adage, “Pay me now or pay me later.” Believe me it’s cheaper to do it 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

Managers Beware: Can you be held personally Liable for wage and hour violations?

https://www.jdsupra.com/legalnews/managers-beware-can-you-be-held-76596/

Bruce’s Summary: After spending over half of my HR career working in California, if there’s one area of state law that continues to amaze me it’s our state wage and hour laws and their ever-evolving potential impact on California employers both small and large. Whenever I’m in conversation with a client or potential client and the subject of wage and hour comes up, my first question is; do you have an employment attorney or know of one? You can guess the next questions asked.
The attached article is a great example of why such a conversation is even more critical today. The title speaks for itself. What does this mean? According to the author, a new labor code section has been added to California’s “A Fair Day’s Pay Act” which imposes personal liability for certain wage and hour violations. Personal liability is defined as, … “employer or “other person” acting on behalf of an employer” to include a “natural person who is an owner, director, officer, or managing agent of the employer.”
The question here is are you or are you not a “managing agent?” This is a question each of us needs to ask and if not sure, do some research on. My blog can’t answer that question for each person, there are too many individual variables. As HR Professionals the ball is in your court to do the research for yourself and your organization to determine whether you fall within the category of a managing agent. Better to know now, then be surprised later, when it may be too late.
Now is also a good time to bring up that thing called training. Again, as HR Professionals, we need to ensure that all those who may fall under the definition of “managing agent” understand their role and yes, any potential liability they may be subject to within their scope of authority. 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

Avoiding Office Holiday Party Headaches 12-3-2018

https://www.jdsupra.com/legalnews/avoiding-office-holiday-party-headaches-74355/
“Avoiding Office Party Headaches”
12-3-18
Bruce’s Summary: Well, it’s that time of the year again for the annual “Holiday Party.” Some of you may have even stepped out on the edge and had a “Halloween Party.” Congratulations if you made it through unscathed without incident this year. But wait, what’s next, the “Big Kahuna”, the “Grand Finale”? – No, the “Holiday Party” with all the usual suspects.
As has been said before, people are more sensitive today to inappropriate behavior and feel more empowered to respond to such inappropriate or perceived inappropriate behavior. It appears the days of ignoring it and hoping it will go away are fading into the distance.
For HR Professionals, it’s that time of the season to double check all the “what ifs” and help everyone understand what the “Holiday Party” is and what it is not especially “you know who”. (Small note to file, get signature pages from those who haven’t signed for the Employee Handbook when last distributed. You may need it next year.)
The author gives some good ideas to consider this year before the party.
“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

No, Stealing Personnel Files Is Not Protected Activity (But the analysis doesn’t end there) 11-21-18

https://www.jdsupra.com/legalnews/no-stealing-personnel-files-is-not-95840/

Bruce’s Summary: Although the decision in this case was not handed down in California, this particular Circuit Court of Appeals message is clear, removal of other employees’ personnel files from the workplace is not a “protected activity” and was a legitimate non-discriminatory reason for the individual’s termination. It appears that the individual employee felt she was being discriminated against and copied several personnel files that were shared with the EEOC in an effort to support her allegations. According to the author, eventually the individual sued her employer and then during discovery had to provide the personnel files she had taken and copied. In response, her employer terminated her for violations of internal policy. The claimant’s case was dismissed.
BUT, as the author indicates, the Circuit Court’s decision appears to leave the door open to further discussion as to those state laws (or a corresponding state agency) that might be in conflict with Title VII claims, especially when the question is one of placing restrictions or limits on the ability of the EEOC to seek the information contained in personnel files. Time will tell.
However, the current message for Human Resource Professional’s is clear, do you have a process for record keeping, do you know who is handling your Personnel Files, do you know who has access to archived personnel files, (sometimes they are comingled with other departmental files off site) do you know who actually has a key or badge to the Human Resources Department, and then ask, who else has access to those files (do your janitorial services have clearances?). As the employer experienced above, who would think a long-time employee would do such a thing. More importantly, how did they have access?
For those who aren’t sure, good time for a HR departmental record retention audit.
“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 California Pickle: Should Employers Defend Alleged Harassers? 10-18-2018

https://www.jdsupra.com/legalnews/a-california-pickle-should-employers-35838/

Bruce’s Summary: As with so many other articles relating to today’s work environment, this one is quite timely. The question the author raises is does an employer once presented with a sexual harassment allegation or lawsuit naming an individual employee as a defendant, run from the employee or provide a defense? As with most legal questions in today’s litigious environment, the author states, “it depends”.
Focusing on California, it has a strong public policy (Labor Code section 2802) that California employers must indemnify employees if their conduct falls within the scope of employment. The author further states, “California employers thus, must indemnify employees if their conduct falls within the scope of employment.” Ah, but not so fast, “The duty to indemnify is not, however, a duty to defend.”
The author does a good job of showing how to walk the thin line between a knee jerk reaction and a wait and see reaction when such allegations are raised. Sometimes finding out when conduct by an employee falls within or outside the scope of their employment can be at the end of an investigation, end of litigation or end of an appeal. For HR Professionals this is a great reference article to use when such issues arise within their work environments.
With the mood today becoming more of a “zero tolerance” approach by many Employer’s, HR Professionals must ensure that the “I’s” are dotted and the “T’s” are crossed when such allegations are raised. Investigations become even more critical in ensuring a through and timely process is followed and completed. Although, California’s Labor Code section 2802 has been around since 1937, for those who weren’t aware of its potential impact on employers, it continues to bring a whole new meaning in today’s litigious society. “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

“EEOC Sees Sexual Harassment Statistics Explode In Past Year” 10-5-18

https://www.jdsupra.com/legalnews/eeoc-sees-sexual-harassment-statistics-93902/

Bruce’s Summary: The EEOC’s preliminary findings are out with expected evidence that the #MeToo movement is not just a passing fad, as some may have thought. It is real, and it is here to stay. The author presents statistics provided by the EEOC for 2017 which should be a clear picture to those HR Professionals that “things have changed” and the old status quo Sexual Harassment, Retaliation and Discrimination Training needs to be revamped. The author provides a sample “5-Step Plan”.
In addition, the methods and means of performing investigations has reached a new level. Investigations “done right the first time” is the new mantra for organizations. In this new era, ensuring investigations are preformed by a neutral party is paramount to an organization’s defense regardless of the investigator’s conclusion. Outside investigators present the best insurance of neutrality for small and mid-size organizations that don’t have separate neutral departments wholly dedicated to performing such investigations.
For those HR Professionals who may be facing an uphill battle in getting their senior management to recognize the serious commitment required by the organization, utilization of the new statistical data from the EEOC is a good first step. The statistics clearly show that potential liability costs for failure to address or inadequately address matters affecting sexual harassment, retaliation and/or discrimination have increased. Unfortunately, what usually causes a shift in the paradigm, regardless of what it is, is the cost to the bottom line and/or the potential of a public relations nightmare. “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