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

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