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

Individual Employees Can Be Liable For Civil Penalties And Attorneys’ Fees For A Company’s Failure To Pay Overtime And/Or Minimum Wages 10-8-18

https://www.jdsupra.com/legalnews/individual-employees-can-be-liable-for-42402/

Bruce’s Summary: This is a key article about a huge change in the California legal landscape, individual personal liability for violation of certain California Labor Codes. In the past the author states for such violations, “under common law, corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employee’ wages.” Now, it appears that the California Court of Appeal, Fourth District has held that individuals can be liable for civil penalties under two labor code sections outlined in the article.
Those HR Professionals and non-HR Professionals in small organizations, handling wage and hour responsibilities, need to take note that “corporate individuals can be held personally liable for civil penalties underlying the statutes requiring that employees be paid overtime and a minimum wage” and additionally, attorneys’ fees if the employee wins the case.
As a ‘best practices” approach both HR Professionals, non-HR Professionals in small organizations, and even consultants and Employment Agencies whose role is administrating wage and hour issues for an organization need to address the personal liability implementations of this case sooner than later with their corporate or outside counsel. Understanding the dynamics and potential pitfalls affected by this ruling early on is in everyone’s personal interest. “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

CA Enacts New Anti-Harassment Laws in Response To #MeToo Movement 10-1-18

https://www.jdsupra.com/legalnews/ca-enacts-new-anti-harassment-laws-in-92466/

Bruce’s Summary: The Governor has been busy and the landscape under the #MeToo and #TimesUp movement continues to shift for California employers. A good overview is presented by the author of what’s in store for California employers starting in January of 2019 through 2020. HR Professionals are directing small business owners and contractors to begin to review their existing policies and procedures that affect possible workplace harassment and retaliation complaints. This is a good reference point to begin their research. 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 and procedures, it’s now.
As was evident throughout 2018, workplace harassment and retaliation allegations continued to surface and be addressed. As I said in January 2018, we continue to look at the tip of the iceberg and have yet to see what else will surface and the shock of who it may be. No one is shielded by the nature of their position, their status or current reputation.
Two final points, first, in reference to regulatory type training on such subjects as anti-harassment and retaliation training, my experience has been that more positive results were always achieved when the training was live and interactive. And, second, 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. “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

Proskauer Delivers #MeToo Webinar With EEOC Commissioner Feldblum 9-27-18

https://www.jdsupra.com/legalnews/proskauer-delivers-metoo-webinar-with-76201/

Bruce’s Summary: EEOC Commissioner Chai Feldblum, was a guest speaker at a recent webinar discussing how the #MeToo movement had impacted workplace dynamics and suggested some innovative solutions for addressing and preventing sexual harassment. Since many of the above suggestions are implemented and administered by HR, HR Professionals should take special notice and adjust where necessary. In addition, the “cat is out of the bag” with special recognition of those “high earners”, “revenue makers” and “super stars” who are now receiving a lot of attention and visibility by the EEOC.
HR Professionals should take special note of the section covering “Corporate Governance Solution” which discussed suggestions of how HR Professionals could work closer with their organization’s Board of Directors in “ferreting out and preventing sexual harassment” in a top down approach. The author did a great job. “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

Retaliation: A Workplace Soap Opera 9-14-18

https://www.jdsupra.com/legalnews/retaliation-a-workplace-soap-opera-93182/

Bruce’s Summary: The author states, “It’s possible to have a valid claim (retaliation) based on an underlying complaint that has no merit.” Something everyone should take a moment to think about.
The author gives three examples for HR Professionals to use as guides when talking with respondents or use for harassment training. As an example, (adding my 20/20 hindsight) in two of the three samples a clear understanding should have been made with the respondent about the pitfalls of responding to the claimant in any manner and the potential negative consequences if such an encounter occurs. The third example, reference to threatening the HR Manager, is trickier. Is it venting or is it threatening? Over my 35-year HR career I experienced both. If threatening, it has to be addressed immediately, if venting, I would let it go with a clear understanding it stops with me. Human beings get upset, everyone does at times, but what has to be understood in our legal environment today is for every action there is a potential consequential reaction. “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 “Weinstein Clause” May Mark a New Era of Social Due Diligence 9-14-2018

https://www.jdsupra.com/legalnews/the-weinstein-clause-may-mark-a-new-era-42857/

Bruce’s Summary: One more view in the arena of M&A’s and how it may appear that boards are starting to have a little clearer understanding of the impact of the “#MeToo” movement. A new term, the “Weinstein Clause” is beginning to make its debut into M&A negotiations as a real potential business risk item along with other key core financial, operational and legal risks that may have major effects on the value associated with the sale of a business.
The authors share both a negative and positive perceptional view of this change and suggest the use of some additional contractual terms for consideration.
As I said previously for HR Professional’s it’s an opportunity to take a lead role in ensuring that their organizations understand and in-still “Best Practices” before “#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 recognized and addressed earlier, train employees how to speak up if they become bystanders and using outside investigative experts for more sensitive higher level “#MeToo” type allegations. “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 #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