Top 3 employment law trends to keep on your radar

Running a business these days is certainly no picnic, thanks to the still-struggling economy and near-constant employment law risk. Management must maintain that perfect balance of awareness and action - or find themselves on the receiving end of a costly, potentially crippling lawsuit.

According to Shanti Atkins, Esq., president and CEO of ELT, the biggest employment law concerns plaguing employers today are:

1) Discrimination. And the claims aren't predominantly sexual harassment anymore, but also sexual orientation, religious and disability discrimination. Are your anti-harassment and anti-discrimination policies in order and, even more important, are you training your managers and staff - thoroughly and regularly?

2) Violence and bullying. Did you know that approximately 20 percent of all violent crime occurs in the workplace? This is no time to ignore bullying and other threatening behavior that could escalate into something more dangerous. Be on the lookout for early warning signs and encourage employees to report concerns immediately so that you can respond appropriately.

3) Wage and hour violations. Perhaps the biggest risk of them all, wage and hour class action lawsuits have expoded. In fact, these claims account for a whopping 84 percent of all employment class action lawsuits. Just as alarming, the Department of Labor (DOL) estimates that more than 80 percent of employers are out of compliance with federal and state wage and hour laws. Not knowing is no excuse. Make sure you're educated on the latest Fair Labor Standards Act (FLSA) guidelines and that you carefully explore any gray areas.

Top 3 employment law trends to keep on your radar

White House gets behind the issue of bullying and how to prevent it

Bullying has grown much bigger than a few mean-spirited taunts from kids on the playground. It has become a type of emotional and verbal warfare that is fought at any age, in any social circle and in virtually any setting (workplaces included). And sometimes the consequences are devastating, as we saw with the tragic stories in 2010 of beleaguered teens taking their own lives to escape the near-constant mocks and insults.

What’s even clearer is that bullying is not some sort of harmless “acting out” that can be brushed aside. Because of electronic mediums and networks like email, texting, Facebook, YouTube videos and more, bullying can become much more pervasive than we ever imagined. We even have a term for it: cyberbullying.

Putting some political muscle behind the issue, President Obama and First Lady Michelle Obama hosted the first-ever White House Conference on Bullying Prevention last Thursday, March 10. It brought together educators, experts, politicians and other concerned individuals to explore how bullying affects American communities and what can be done to minimize it.

"If there is one goal of this conference, it is to dispel the myth that bullying is just a harmless rite of passage or an inevitable part of growing up," Obama said in a speech.  

So what about bullying in the workplace? Is it really that big a deal? Unfortunately,  yes! And we’re learning that it’s just as likely to be delivered by females as it is men. According to a nationwide poll by the Employment Law Alliance, 45 percent of American workers say they’ve experienced workplace abuse, and 40 percent of these bullies are women (with women bullies picking on other women more than 70 percent of the time).

Left unchecked, bullying can deal a dangerous blow to workplace productivity, as well as the individual’s health, causing headaches, loss of appetite, high blood pressure, insomnia, depression and panic attacks.

To deal with being bullied at work, Dr. Michelle Callahan in an article at huffingtonpost.com recommends:  

1. Don't get emotional. Bullies take pleasure in emotionally manipulating people. Stay calm and rational to diffuse the situation.
2. Don't blame yourself. Acknowledge that this is not about you; it's about the bully. Don't lose your confidence, or think you are incapable or incompetent. They are usually beating you at a mind game, not based on your actual work performance.
3. Do your best work. The bully's behavior will seem more justified if you aren't doing your best work, or if you do things like come to work late, take long lunches, turn in work late, etc.
4. Build a support network. Instead of allowing the bully to make you retreat into your office, work on building your relationships with your coworkers so that you have support and the bully doesn't turn them against you as well (although she will try and may even be successful).
5. Document everything. Keep a journal (on your personal computer or in writing, but never leave it in the office) of what happened when (and who witnessed it) so that if you need to escalate this problem to Human Resources, you have the information you need to make your case. Keep emails and notes.
6. Seek help. If you think you're being bullied, it's time to start talking to others who can help you manage this situation. Try a mentor, advocate, seasoned/experienced friend, even a legal advocate who specializes in bullying and inappropriate or discriminatory behavior in the workplace.
7. Get counseling. It will help you deal with the stress, especially if the bullying is already affecting your physical and mental health. You have to take care of yourself.
8. Stay healthy. Maintain a healthy and balanced lifestyle outside of work to help you cope with the madness at work. Work out, get a good night's sleep and eat a healthy diet.
9. Educate yourself. Learn everything you can about bullying, your company's policies on inappropriate behavior and occupational law regarding this kind of experience. The more you know, the better your chances of successfully dealing with this situation.
10. Don't expect to change the bully. Real behavior change is difficult and it takes time. You have no control over a bully's willingness to accept that they have a problem and to work on it. You can do your best to manage the situation, but it's really the company's responsibility to be observant and responsive to the needs of their workers and the general work environment.

Regarding the 10^th suggestion, there are many things you can do as an employer to support a more inclusive corporate culture and prevent bullying and other types of harassment. On-site training can go a long way toward spreading the message that workplace bullying will not be tolerated – at any time and in any form.

White House gets behind the issue of bullying and how to prevent it

In a weak economy, discrimination charges strengthen

Not good. Not good at all. According to a wsj.com article, workers filed a record number of discrimination charges against employers last year. And once again, the strained economy is to blame.

The number of charges filed with the Equal Employment Opportunity Commission (EEOC) climbed to nearly 100,000 – a 7% increase from the year prior and a 21% jump from 2007.

Joe Trauger, vice president of human-resources policy for the National Association of Manufacturers, a business trade group, explains:

"When times are good, people are happy and when they're not, they aren't. Anytime we go into a recession or the economy gets a little shaky the numbers seem to spike a bit.”

The fact that the EEOC has ramped up its budget and staffing may be contributing to the increase, as well. With more resources to work with, the agency is working harder to educate employees about their workplace rights while also making their services more user-friendly and accessible.

Apparently workers are getting the message. They’re quicker to recognize discriminating behavior and take legal action when they feel they’ve been wronged.

The message, then, for employers is to ensure a harassment-free workplace supported through clear workplace policies, strict adherence to anti-discriminatory labor laws, and ongoing employee and manager training.

In a weak economy, discrimination charges strengthen

Enforcement kicks into high gear - Don't leave your compliance efforts idling!

After shoring up their resources last year, the Equal Employment Opportunity Commission (EEOC) and Immigration and Customs Enforcement (ICE) are flexing their enforcement muscles ... and planning to pack a punch in 2011.

Increased staffing and a sharper focus on enforcement will mean more audits, more investigations into complaints and more inspections in the months ahead.

The EEOC, for example, received a record-high of 99,922 discrimination charges in 2010. Yet because of the EEOC’s expanded resources, the number of pending charges dropped by 14 percent. And that’s not all: Greater claim-processing procedures resulted in the EEOC collecting an all-time high of $404 million from employers last year.

ICE is making its presence known, as well. Last year, the agency conducted more than 2, 200 employer audits, which led to 180 criminal charges. And immigration enforcement continues to be a priority for the Obama administration, with ongoing goals to conduct on-site inspections (particularly businesses that employ workers with H-1B visas) and expose illegal hiring practices.

In light of these recent statistics, it’s never been more important to prevent harassment and discrimination in the workplace (via clear policies, legally sound actions and attitudes, and regular training) and to keep scrupulous I-9 records on all employees. Otherwise, you could find your company on the receiving end of a discrimination lawsuit or I-9 audit.

Enforcement kicks into high gear - Don't leave your compliance efforts idling!

'Tis the season for sexual harassment training

In just a few festive hours, an employee can do or say something at the annual holiday party (see previous post) that could lead to a sexual harassment claim – and a legal mess that lasts long after the tinsel comes down.

To keep the good cheer in check and protect your company from a harassment claim:

Remind employees of your no-harassment policy. Redistribute the policy before the holiday party, and emphasize that all guidelines will be in full force, even if the party occurs off-site or after work hours. Be certain your employees understand that harassment can be verbal, physical or visual. The areas that could get someone in trouble at a holiday event are most likely verbal and physical harassment, including inappropriate comments, jokes, unwelcome physical contact, invading one’s physical space and offensive gestures.

Make sure all employees and supervisors have received sexual harassment training. If you haven’t conducted sexual harassment training in the past year, consider organizing a one- to two-hour session that covers definitions and examples of harassment, an overview of employee rights, and clear communication that the company will not tolerate harassment of any kind.

A few last tips …

Since you could be found liable for injuries caused by a drunken employee, consider not serving alcohol at all – or taking steps to limit consumption, such as providing a limited number of drink tickets for each employee, closing the bar well before the party ends or offering perks to employees who volunteer to be designated drivers.

Also, stress to supervisors the importance of setting a professional example, and that you’re counting on them to keep an eye on any employee antics that could get out of hand.

'Tis the season for sexual harassment training

It's (work) party time! How to ring in the holidays without regrets

Whether a corporate-sponsored, semi-formal event or a group outing at a local watering hole, holiday gatherings are festive events, which can lead to careless carousing (especially when the eggnog is spiked).

That doesn’t mean employees can’t and shouldn’t have fun. They simply need to party smart. There is no other event on the corporate calendar that offers greater opportunity to be noticed - whether it’s as employee of the year or the guy who slow-danced with the table centerpiece.

Help your employees have a joyous and memorable-for-all-the-right-reasons corporate holiday season by encouraging them to follow these party pearls of wisdom:

1. Join the festivities. First and foremost, encourage employees to attend the event. Yes, it’s the holidays and everyone is busy but “no-shows” are noticed. At the very least, attending demonstrates that you’re a team member and not an outsider.

2. Dress appropriately. This is no time to be a jester in a court of kings. Don’t show up looking like you’re cleaning out the garage … or test the boundaries of good taste with clothes too tight, too short or too low. Do your best to blend and remember that how you dress matters.

3. Restrict the refreshments. Too many trips to the spiked punch bowl or open bar can lead to inappropriate words and actions. Limit yourself to one or two drinks, so you can leave the party with your wits - and reputation - intact.

4. Toe the line. Although employees are not officially on the clock, their conduct during on-site or off-site events should be the same: businesslike. Many a career has taken a turn for the worse due to loose lips, lapses in sound judgment and other embarrassing shenanigans. Keep it clean and keep it professional.

5. Expand your social circle. While it’s easier to hang out with your “regular” group of coworkers, a holiday gathering is a great environment for getting to know employees you don’t regularly interact with. On the flip side, don’t attach yourself to just one person and monopolize the conversation. Move around and mingle.

6. Limit “shop talk”. While you’re mingling with others, try to keep the business talk to a minimum. Instead, take advantage of the opportunity to get to know your coworkers on a more personal level. Be positive and stick with safe topics like travel, family, local sports and movies.

7. Be appreciative. Before leaving the party, make an effort to thank a senior executive. Not only is it proper etiquette, but it also gives you a chance to make a positive (perhaps even first) impression. Your politeness will be remembered.

Check out Friday’s blog post for some final tips from the HR front for keeping your holiday event happy and harassment-free.

It's (work) party time! How to ring in the holidays without regrets

Stand up to workplace bullies

"Sticks and stones may break my bones, but words will never hurt me." If only that were true. As it is, words can be extremely hurtful, whether they're delivered by a surly schoolmate when we're young or a cocky coworker later in life.

According to a 2007 Zogby International survey, nearly 37% of workers (or about 54 million people), have been bullied or repeatedly mistreated at work. What’s worse, bullying is on the rise. ValueOptions®, an independent behavioral health and wellness company, reports a spike in people accessing the Employee Assistance Program (EAP) due to on-the-job bullying and other aggressive behavior.

“At work, bullying can be less obvious [then on the playground] and occur over a long period of time, resulting in extreme stress and anxiety for the employee,” says Rich Paul, vice president of Health & Performance Solutions at ValueOptions. The ongoing stress can lead to physical and mental health problems, a drop in job performance and more sick days away from the office.

The top five tactics used by workplace bullies are:

1. Falsely accusing someone of errors that weren’t made
2. Staring, intimidating or otherwise showing hostility
3. Discounting a person’s thoughts during a meeting
4. Using the silent treatment to isolate
5. Exhibiting unpredictable mood swings in front of a group

As with other forms of harassment, employers are responsible for taking a zero-tolerance position against bullying and just as important, educating employees on the words and actions that can get them in trouble. Prevent workplace bullying with Harassment-Free Workplace – Take Control, an engaging, easy-to-use, four-module DVD training program.

Stand up to workplace bullies

Does your harassment training cover mistreatment of men?

Workplace harassment can rear its ugly head in many different forms. The stereotypical image of harassment as the overbearing male boss making advances on a young, attractive female is a narrow-minded view. And if your training takes this same narrow-minded view, you could be tip-toeing around some legal landmines.

Take male harassment. Last year, the percentage of lawsuits the EEOC filed on behalf of male victims reached an all-time high – amounting to 14% of all cases.

A Seattle Times article explains:

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it's unwelcome romantic advances. Other times, men are picked on because they are gay, perceived as being gay or not considered masculine enough for the work setting.

As the EEOC handles more lawsuits involving men, it’s also reinforcing the message that this type of harassment is unacceptable and unlawful. Case in point: Last November, the Cheesecake Factory agreed to pay $345,000 to six male employees who claimed they were sexually assaulted by a group of male kitchen staffers at a Phoenix-area restaurant.

Another case in point, this time involving women making unwanted advances toward men: Last year, the Regal Entertainment Group agreed to pay $175,000 to a male employee who claimed a female co-worker repeatedly grabbed his crotch.

While male victims may be less inclined to come forward with their harassment claims for fear of being judged or ridiculed, they shouldn’t be expected to suffer in silence either.

“All sexual harassment victims feel humiliated, lacking control and power," says Mary Jo O'Neill, a regional attorney in the EEOC's Phoenix District office.

How inclusive is your harassment training? Are you taking a broad view of every type of harassment that can surface in your workplace? And more important, are you educating your staff on the attitudes and actions against women and men that can get them in trouble?

Does your harassment training cover mistreatment of men?

Same-sex harassment complaints growing

Dillard’s, Inc. will pay $110,000 and provide significant remedial relief for a same-sex harassment suit in Florida, according to an announcement from the Equal Employment Opportunity Commission (EEOC) last week.

The EEOC claimed that Dillard’s violated Title VII of the Civil Rights Act by permitting a sexually hostile work environment for men at its Fashion Square Mall store in Orlando, Fla. The EEOC charged that a male sales associate and a young dockworker were verbally and sexually harassed by a male supervisor.

The workers accused their supervisor of exposing himself in front of them, making sexual propositions, and making sexually explicit and derogatory comments. According to the EEOC, Dillard’s store managers ignored complaints made by the workers about the harasser.

Dillard’s argued that the store wasn’t liable because the supervisor had been fired and had an anti-harassment policy in place. The court rejected that argument and “found that Dillard's anti-harassment policy could not absolve it of liability if the policy hadn’t been effectively implemented.” (Business Management Daily)

“The EEOC will hold corporate America accountable for failing to prevent and correct employment discrimination,” said Commission Acting Chairman Stuart J. Ishimaru. “Sexual harassment charge filings by men have trended upward over the past decade. Employers must be more vigilant in ensuring that men are not subjected to sexually hostile workplaces.”

In addition to paying $110,000 to the two male victims, the Dillard’s Fashion Square Mall store must:

• distribute policies to the workforce on preventing sexual harassment and retaliation;
• conduct sexual harassment and anti-discrimination training for all employees;
• train employees who are responsible for investigating sexual harassment complaints;
• submit to monitoring throughout the decree’s three-year duration;
• and post a notice about the resolution of the case.

“Employers must diligently enforce policies to prevent sexual harassment and ensure that managers take same-sex harassment complaints seriously. It is vital to protect both men and women from workplace harassment,” said EEOC Miami Regional Attorney Nora Curtin.

The number of sexual harassment charges filed with the EEOC are up 11% from last year and at the highest rate since 2002. Sexual harassment charges filed by men make up 16% of total charges, a figure that once stood at 12% in the late 1990s.

Sexual harassment is sexual harassment no matter if it’s male-on-female, male-on-male or female-on-female. Even if the harassment doesn’t look exactly like what was taught in the training video, it should still be handled with the same sensitivity and diligence that would be given in any “normal” situation.

According to Mindy Chapman, Esq., of Mindy Chapman & Associates, in a recent Business Management Daily article, companies can learn three major lessons from this case:

1. Train “it.” Anyone designated in your anti-harassment policy’s reporting procedures needs to know they could be tagged “it” with a complaint. Train them so they know “it.”


2. Script “it.” The store manager should have responded by saying, “Thank you for letting me know. You are important to us at Dillard’s. I will help you immediately.” Then he should have, in the next breath, contacted the district manager.


3. Stop “it.” The manager had an obligation that if he saw “it,” heard “it,” or heard about “it,” he should have stopped “it,” but never ignored “it."

Same-sex harassment complaints growing

Use sexual harassment training as prevention, not punishment

Cracker Barrel Old Country Stores, Inc. will pay $255,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Opportunity Commission (EEOC), the agency announced Thursday April, 9.

Cracker Barrel, based out of Lebanon, Tenn., had allegedly turned a blind eye to repeated sexual harassment incidents at its Cedar Bluff, Tenn. store location. The EEOC lawsuit claims that male managers and other employees made repeated and unwanted sexual jokes and lewd remarks to women.

When the women complained about the sexual harassment to the managers and made calls to Cracker Barrel’s compliant line, the company failed to take any action to stop the harassment.

The company failed to take any action to stop the harassment, even after the women complained about it to managers and to the company’s complaint line, according to the lawsuit.

Under the terms of the settlement, Cracker Barrel must: 


• Modify its policies and practices regarding the investigation of sexual harassment claims,
• Conduct annual training on sexual harassment and retaliation for all employees for a period of three years
• Maintain and report complaints of harassment received for three years
• Post the company’s sexual harassment policy and a statement it will investigate anonymous claims of sexual harassment.

Instead of having sexual harassment training be a punishment for your organization, make it a part of your company culture. Empower every employee with the promise that every sexual harassment claim will be taken seriously and that each case will be fully investigated.

Incorporate sexual harassment training into an overall harassment prevention program at your organization to ensure every employee, including managers and supervisors, know how to recognize and prevent harassing behavior.

Unfortunately, many of your employees may be engaging in or condoning sexual harassment without even realizing it. G.Neil’s Harassment-Free Workplace -- Take Control training program helps employees understand how they can “pause, fast forward, rewind and stop” to take responsibility for their own actions.

Use sexual harassment training as prevention, not punishment