Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

At the University of Iowa, an investigation showed that the athletics academic adviser violated the school’s harassment policy over a period of years.   In December, the President of the Regents, which governs the university, said that this showed a failure to implement a policy that requires all university employees to participate in sexual hharassment training.

The university president, Sally Mason, requested that an internal audit be conducted into the school’s hiring and training practices, and the results showed 100% compliance in attending the sexual harassment training in the Athletics Department, but only 81.6 % compliance overall in the school.

The audit recommendations included centralized personnel files, training on performance reviews, and ensuring all evaluations are completed timely.  The university management will implement the recommendations by April, and report back to the Regents then.  

The university has done pretty well in implementing harassment training programs, and in conducting an audit to assure compliance.  As an employer, can you say the same thing?   

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We commend for your edification an excellent and timely article written by our colleague,  Jonathan Ash, in his blog New Jersey Human Resources.  

He says that  "the start of the new year is an excellent time to revisit and re-evaluate the policies contained in your Company’s Employee Handbook," and discusses topics such as workplace violence, social media and disability accommodation.   

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As tomorrow’s Scarlet and Gray game approaches and NBC is reporting that the rosters are set, it is making me look forward to the fall and college football.

It is also a good opportunity to comment on the very public scandals that rocked college sports in the last year and point out lessons that can be learned by employers.

Before I get into that however, for those uninitiated folks, the Scarlet and Gray game is the close of the Ohio State Buckeyes’ spring football practices and gives anxious Buckeye fans a chance to see how the team is going to look in a game situation.

I am hoping for a good show and that Jake Stoneburner has a good year. Although I do not believe I am any relation to Jake, he does come from a town very close to where I grew up. Plus, let’s face it, Stoneburner is not a common name, so it is cool to think one might be playing in the NFL someday.

I am also hoping that the focus will be on the new coach Urban Meyer and not on the NCAA violations and fines. The most surprising thing about the NCAA issues that plagued Ohio State in 2011, was not that players had used their influence to get free tattoos, but rather the downfall of Coach Jim Tressel, a man previously known affectionately as the Vest (as in sweater) and thought of first and foremost as a conservative coach – not a rule breaker.

So, what went wrong? Well, I am sure a detailed discussion of this could be the subject of many blog posts.

My first thought is, if Coach Tressel is given the benefit of the doubt, that Ohio State failed as an organization in not properly training its employees in how to report and deal with violations.

Now I know some of you reading this think that is not true, coaches have the NCAA rules beat into them. That may be true but this was a situation where the information was leaked to Coach Tressel by an alumnus who was aware of an FBI investigation. A criminal investigation where the FBI is notoriously testy about any person disclosing details of an investigation.

It begs the question, do your employees know what to do if they are contacted by law enforcement? Although hopefully a worst case scenario, employers should consider addressing these situations in their handbooks and policies to cover both what has to be reported to management and who is responsible for communicating with law enforcement.

Now, back to football – GO BUCKS!
 

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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Harassment training? If you read the title of this blog out loud and heard groans from other people in your office, I understand. In fact, when I have done harassment training for clients, I have heard every complaint and bad joke about harassment training there is.

Harassment training is one of those dreaded exercises by employees and management alike. Indeed, harassment training has become comedy fodder for many a tv sitcom. My personal favorite is still The Office episode "Diversity Day" where a sensitivity trainer is sent out to the branch due to Michael's comments. A perfect what not to do lesson. Check it out if you want a good laugh.

But while The Office may be funny, a real harassment claim is anything but funny for employers. As we posted in our February 10, 2011 blog, employers who provide regular training on their harassment and discrimination policies may be able to assert an affirmative defense to a claim of discrimination where an employee is aware of the policy and fails to report the harassment prior to filing a lawsuit. 
 

Recently, the issue of training came up again in the New Jersey Appellate Division case Wallace v. Mercer County Youth Detention Center.  In addressing when an employer could be liable where a non-supervisory co-worker commits the harassment, the Court re-emphasized the need for employers to not only issue policies but also to provide harassment training to its employees.  The Court noted that providing harassment training, in addition to properly training those investigating the complaints on how to do a correct investigation, was critical to asserting an affirmative defense to liability. 

In short, employers must make it clear to their employees, through training, that harassment of any kind will not be tolerated.

Although it may be possible to assert the defense even in the absence of training, providing the training is an easy fix.  Generally, the cost to employers, both in terms of lost productivity while the employees are at training and any costs paid to a trainer, are minimal as compared to litigation costs.

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Effective April 9, 2011, Section 195.1 of the New York State Labor Law, requires all employers, other than governmental agencies, to give employees at the time of hire (before work is performed), and on or before February 1st of each year, notice of:

1. the employee’s rate or rates of pay;
2. the overtime rate of pay, if the employee is subject to overtime regulations;
3. the basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.);
4. any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances;
5. the regular pay day;
6. the employer’s name and any names under which the employer does business (DBA);
7. the physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and
8. the employer’s telephone number.

This notice must be provided in English and the employee’s primary language. The employer must also secure a signed statement from the employee acknowledging that they received the written notice in English and the employee’s self identified primary language. The signed acknowledgments must be retained for at least 6 years.

The New York State Department of Labor (DOL) has prepared several templates of the requisite acknowledgments and they are available to the public on the DOL’s website. Employers who use the DOL’s templates will not be penalized for errors in the templates. Further, if the DOL does not issue a notice template in the primary language of an employee, then the employer would only be required to provide the notice to that employee in English.

Exempt employees may be advised of the specific reason they are deemed exempt.

What’s Next: Many employers should be aware of this requirement. However, in the event you forgot about it, you should immediately review the requirements and develop the necessary steps to ensure compliance. Failure to do so may lead to a potential unpleasant visit from the Department of Labor.
 

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Once again the holiday season is here, with office parties galore, and the scolds are back to put a damper on the fun.  Or put another way, the prudent advisers are back to encourage you to have fun without the years-long hangover that an employment lawsuit will bring to those who indulge too much or too freely.  

It goes without saying that an office party is considered a work-related function, so that all work-related rules, policies and practices that are in place to shield you from lawsuits alleging discrimination, harassment and other related problems SHOULD CARRY OVER TO THE OFFICE PARTY.  It is as simple as that, or as difficult. 

Otherwise sensible, reasonable and well trained people can get carried away when under the influence of that devil egg nog.  And they can do things that they know, in more sober times, is impermissible.

By all means have fun and encourage a collegial and merry party.  That alone is an important part of employment.  But, to keep it brief, make sure that you let all employees and managers know in advance that you will not tolerate behavior at the party that would be considered harassing behavior in the office.  Moreover, note that over indulgence will not be considered a valid excuse. 

Have at least one manager there who remains sober, to keep an eye on behavior (or, perhaps, a family member who will be the designated scold).   Let everyone know that what could be seen as consensual intimate behavior (or what may very well be, in fact, consensual intimate behavior), in other venues and at other times can lead to claims of harassment the next day.   Too much alcohol consumption is a danger, and close dancing can lead to tomorrow's complaint of an unwanted touching.   Above all, remind everyone that they are adults and that a party atmosphere with unchecked drinking may result in out of control behavior and the loosening of otherwise normal day-to-day self-restraint which can have very serious undesirable workplace consequences.

With that reminder of the real world that awaits tomorrow, try to still have fun.  It CAN be done!

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Some time ago, we gave you the first five of our top ten tips to lower your risk of being sued for employment discrimination. Summarizing them, they were:

- know the rudiments of anti-discrimination law;

- maintain a zero-tolerance anti-discrimination and anti-harassment policy;

- hire a knowledgeable and experienced HR person, or general counsel, if you can afford it;

- have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, accountant, or outside vendor;

- draft and maintain an up-to-date employment manual or handbook.

Here are the second five of our list of top ten tips:

            6.         Even if it not required by your state’s law, maintain a periodic training program for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies. Keep the training current and specific to each state in which your company does business.  

            7.         Keep good records, especially about employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support disciplinary measures, termination or reductions in force. Don’t be caught short when, for example, a troublesome employee with a long history of insubordination, abusive behavior, or poor attendance, sues you after an adverse employment action and you have no documents to support your action. Even worse is to create records, or back-date them, when none exist, when you discover that you have nothing to prove that the employee was a problem for a long period of time, the reason that you have given for firing him/her. 

            8.         Let all employees know where to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly. 

            9.         Know who you hire. Consistent with the anti-discrimination laws, and laws relating to, by way of example, credit and criminal record privacy, and health record confidentiality, do the legal and proper due diligence before you hire someone, lest you find yourself with an employee who has a long history of suing employers for alleged discrimination or harassing co-workers. 

            10.       Above all, obey the “Golden Rule” as it applies to the workplace: be as honest, transparent and forthright with employees as is consistent with business considerations, keep employees in “the loop,” and maintain a fair and consistent workplace. Employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

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I recently attended a conference for which I prepared a presentation on the Essential Components of an Employee Handbook. After several discussions with Managers and Human Resource professionals at the conference, it was apparent that many employers do not have a basic employee handbook. Others have handbooks that fail to include the essentials. That said, to follow is a quick recap of some of the essential components of a good handbook. However, be careful: simply searching the Internet and inputting sections that resemble the headings covered below, without tailoring it specifically to your company/industry or consulting your attorney can be detrimental to your business.

1. Policies must comply with all the applicable laws and regulations
This goes without saying, but putting a policy in writing that violates the law will all but seal your fate if that policy is challenged by the government or an employee. Think federal, state and local law. If you have locations in more than one city or state, one handbook may not fit all.

2. Disclaimers
The key here is to clearly and prominently preserve the at-will employment status and not unwittingly draft your way into a contract that can only be terminated under limited circumstances.

3. Code of Conduct
Quite possibly the most heavily relied upon section of any handbook involves the disciplining or terminating of employees. This is your chance to set the tone of your workplace and outline your expectations. You might include, among many other provisions:
• Dress code
• Absentee policy
• Drug and alcohol policy

4. Discrimination and Anti-Harassment Policies and Reporting Mechanisms
Need I say more? Not having a clear and well disseminated anti-discrimination and anti-harassment policy – a “zero tolerance” policy -- will potentially rob employers of affirmative defenses to harassment actions and will undoubtedly lead to problems in the workplace and beyond.

5. Computer/Internet/Device Usage Policies
There is no turning back. We are and will forever be in the age of technology. Work-issued devices, such as company computers with access to emails and the Internet, can be beneficial to the company. However, in the same breath, it could make a company susceptible to litigation based on the employee’s conduct on the Internet or in emails. This is a new area of the law, but it is developing quickly and leaving oblivious employers in a dangerous position.

All said, draft and/or periodically update your handbooks to ensure that you are complying with the law. Anything less will be to your detriment. That’s all for today, more to come, including the one that some employers skip entirely…you guessed it……. to be covered in Tips numbered 6 – 10.
 

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Our entry of June 29, 2010 reported on a staffing company (Spencer Reed) which entered into a “consent decree”  to settle a case filed by the EEOC under Title VII and the Age Discrimination in Employment Act (“ADEA”). On June 15, 2010, another staffing company similarly entered into a consent decree with the EEOC, in a case filed under the Americans With Disabilities Act (“ADA”).  In EEOC v. Balance Staffing, N.D. Ill., No. 1:09-cv-6004, June 15, 2010, the EEOC claimed that the company hired Jocelyn Snower but that the offer was revoked when it discovered that she was blind.

As in the Spencer Reed consent decree, Balance Staffing not only made a cash payment to Ms. Snower, in this case in the sum of $100,000, but was also required to provide annual EEO training to all of the involved managers and human resources employees, and to report to the EEOC all future discrimination and retaliation complaints. 

Another expensive lesson learned too late -- the company should have practiced “preventive law,” and trained its managers and employees in advance.  

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In 2009, the EEOC sued the employment staffing firm of Spencer Reed Group in a federal court in Georgia on behalf of an older, white former employee, Diane Coleman, who was employed in the Atlanta office. The case is named U.S. Equal Employment Opportunity Commission v. Spencer Reed Group, LLC (N.D. Ga, No. 1:09-CV-2228  June 8, 2010). The complaint, filed under Title VII and the Age Discrimination in Employment Act (“ADEA”), alleged that Spencer Reed treated Coleman differently (and worse) than it did younger, African American employees, and fired her the day after she complained about this.

 To settle the case, Spencer Reed entered into a “consent decree” in which it paid Coleman $125,000. Additionally, under the consent decree Spencer Reed agreed to do, among other things:

·        comply with Title VII and the ADEA in all respects;

·        provide anti-discrimination training to all of the employees and managers in its Atlanta

       workplace;

·        post notices in its Atlanta workplace informing employees of their rights under Title VII

      and the ADEA and of the settlement of Coleman’s case, and to permit the EEOC to

      enter the workplace to monitor compliance with this provision; and

·        certify to the EEOC every 6 months whether anyone in the Atlanta office has

      complained about race and/or age discrimination, providing relevant details.

This settlement is noteworthy to us because it underscores our belief that if an employer practices “preventive law,” by doing before an employee complains of discrimination what the EEOC required of Spencer Reed after the lawsuit was filed, it could save the employer having to pay a judgment of $125,000, or much more. 

If an employer has and maintains a policy and procedure manual which is distributed to all employees and contains a “zero tolerance for discrimination” provision, posts anti-discrimination notices in the workplace, provides periodic equal employment training to both managers and employees, and periodically conducts an audit to insure compliance with the anti-discrimination laws – pretty much all of which the EEOC required of Spencer Reed in this consent decree – the employer might be able to avoid the enormous expense, time and distraction of a lawsuit, and a whopping judgment. 

Perhaps the motto of this blog should be:

                    “An ounce of prevention. …”     

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As many pundits expected, the U.S. Equal Employment Opportunity Commission (EEOC) is stepping up its litigation of discrimination claims. In one week, the EEOC settled two lawsuits totaling $180,000. Although the financial recoveries may not be significant to many employers, having the EEOC’s nose in your business is never a good thing and can lead to protracted litigation for years to come.

On June 7, 2010, the EEOC announced that it settled a case with a Harley Davidson motorcycle dealership where the company agreed to pay $55,000 to settle a Title VII sex discrimination and retaliation lawsuit filed by the EEOC. In addition to the payment, the dealership was ordered to revise its equal employment policy and complaint procedure; conduct annual sexual discrimination and retaliation training; post a notice stating the terms of the settlement and how to complain about discrimination. On June 9, 2010, the EEOC announced that it settled a Title VII race discrimination and age discrimination and retaliation lawsuit brought pursuant to the Age Discrimination in Employment Act (ADEA) against the Atlanta office of Spencer Reed Group, LLC, a Kansas-based staffing firm for $125,000. In addition to the monetary relief, the settlement also requires the company to provide EEO trainings, submit reports to the EEOC, and post anti-discrimination notices.

These two employers will now have the EEOC watching their very basic employment functions such as training of staff, and will be required to file periodic reports with the agency from which additional litigation could ensue. In addition, the employees of these companies will now be apprised of the settlements and mandates placed on the company by the EEOC. These companies should expect more administrative charges and will have to strictly comply with the respective decrees. Employers that have a very good and consistent EEO training program and complaint process need not be alarmed by these settlements. However, if you can’t quite remember how many of your current employees are EEO trained, or the last time your employee handbook or complaint process was updated, I would suggest you contact your labor and employment attorney to address those matters before the EEOC does.
 

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In a recent and much anticipated decision, the New York Court of Appeals, the State’s highest court ruled in Zakrzewska v. New School that the New York City Human Rights Law (“NYCHRL”) imposes strict liability on an employer where the offending employee exercised managerial or supervisory responsibility over the employee-plaintiff. 

Prior to this decision, New York City employers were advised by counsel that they could potentially escape liability in harassment cases by asserting the Faragher/Ellerth defense which in relevant parts require the employer to establish that it:

1) took reasonable steps to prevent or promptly correct the alleged harassment; and

(2) the employee unreasonably failed to take advantage of any preventative opportunities provided by the employer.

That defense is no longer available to employers defending claims of harassment by a supervisor brought pursuant to the NYCHRL. Instead, the court in Zakrzewska instructed that an employer’s anti-discrimination policies and procedures may be considered only for purposes of mitigating the amount of civil penalties or punitive damages awarded to the plaintiff.
 

New York City employers must increase their efforts to monitor and prevent workplace harassment. Specifically, with respect to supervisors, New York City employers must conduct comprehensive, mandatory harassment trainings with particular emphasis on how to identify and address unwelcomed conduct in the workplace, and contemporaneously document all affirmative steps taken to investigate and resolve those activities. Anything less will be to an employer’s peril.  To the extent your company does not conduct frequent and thorough harassment trainings programs, you should contact your labor and employment counsel immediately to create one for your business.

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