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PROBLEMS AND NEW APPROACHES TO THE HARASSMENT EPIDEMIC

The growth of the "Me-Too" movement, as recently exemplified in the controversy surrounding the Kavanaugh nomination, has increased emphasis on the American public's sensitivity to inappropriate language.  We all have seen situations in the last year of business and political leaders whose careers have been damaged by using inappropriate terminology, even though in some cases the remarks were apparently made without bad intent.  Some say the country has gone too far towards "political correctness."  Regardless of the merits of this debate, one who ignores recent events does so at his or her own risk. 

Perhaps a solution is the development of principles that are so widespread and accepted that conformance is encouraged.  Such standards would also need enforcement mechanisms that are sufficiently supported to carry out the intended purposes.  These principles have direct application to the legal and practical consequences of limiting and addressing harassment in the workplace.

Employers must end or at least limit harassment in the workplace for both legal and practical reasons.  The legal reasons are obvious, but the practical reasons pertain to productivity and retention of employees, the company's image in terms of hiring and sales, and the influence of shareholders.  These considerations suggest that employers should develop enforcement models that gain widespread acceptance on the part of all those affected.  Different people may have different ideas as to whether the "Me-Too" movement has gone too far, or not far enough, but why not focus on the concept that few can deny is legitimate, that being one of respect for the individual.  The term "respect for the individual" goes back to the Ten Commandments, and is a concept that can be the centerpiece of not only non-discrimination and anti-harassment policies, but also the foundation of a corporate philosophy. 

Perhaps the concept of "respect for the individual" should be the cornerstone of discrimination and harassment policies.  If such a concept actually promotes better hiring, retention and productivity, and lessens legal and related concerns, why not make it the centerpiece of corporate harassment policies?

Maybe the term "respect for the individual" is an elusive concept.  What is "respect for the individual" in one person's mind may not be the same as another's.  But perhaps "respect for the individual" can be merged or joined with another widely accepted principle, that of giving people a role and the ability to participate in the process.  This concept of participation goes back to the idea that people who participate in the development of a concept are less likely to oppose or fight it. 

Admittedly, modern business cannot efficiently run as a pure democracy.  However, a modern business can be run by allowing employees to feel they have a role in the development of the process they are being asked to follow and support.

So how do the concepts of respect for the individual and participation in company policies play a role in non-discrimination and non-harassment?  Leadership is still necessary and desirable to attain the desired goal.  This would suggest that corporate leaders must lead the way in proposing the policies, explaining the reasons for the policies, and providing a necessary forum for employees to "participate" by providing their input and/or suggestions.

Because times change, as well as circumstances and attitudes, not to mention personnel, the process must be on-going.  Further, the process goes beyond simply writing the policies, and there must be consistent implementation of policies, backed by the actions, attitudes and public images, of the leadership.  If the leaders themselves flaunt the policies, cynicism at lower levels is likely to occur, and the battle for acceptance and support is likely lost. 

Some companies are applying the above concepts in addressing non-discrimination and harassment issues.  Rather than addressing legal principles or discipline, "respect for the individual" could be the theme of harassment and non-discrimination training.  The policies on which employees are trained could themselves be subject to input by employees, either through draft notices of policies under consideration, or input from formal or informal employee committees before such policies are implemented.  Similarly, the training methodology could be subject to similar input from employees before the training is actually conducted.  Further, the training could be made applicable to all levels of employment, from top management to first-line supervisor, to rank-and-file employee. 

To some, these ideas may sound like "ivory tower" ideas.  But some companies follow them and swear by them.  A prime example is that today employers are extending their harassment training to rank-and-file employees, and not just to first-line supervisors.  After all, in more cases than not, it is rank-and-file employees that are susceptible to being harassed or harassing others.  Indeed, a relatively recent phenomenon is the emphasis in some harassment training programs on "bystander training."  This training emphasizes the actions that an employee is expected to follow or should follow once he or she sees the harassment of others.  What should the "bystander" to such harassment say or do, and to whom?  Modern thoughts suggest that such "bystander training" can go a long way in preventing or limiting the problem, to the betterment of all.

EMPLOYER COBRA NOTICES DRAWING A LOT OF ATTENTION IN CLASS ACTION LITIGATION

The Consolidated Omnibus Budget Reconciliation Act (COBRA) applies to employers of 20 or more employees.  When employees leave their jobs, covered employers are required to send notices to former employees of their right to continue coverage under the company's health plan for a limited period.  Employers that send deficient notices of COBRA rights may incur penalties of up to $110.00 per day for each affected individual, plus extended exposure under the company's health care plan.  The law requires that the notices be written "in a manner calculated to be understood by the average plan participant," and sent in a timely manner. 

Recently there has been a surprisingly large number of class actions filed against employers for failing to meet the COBRA notice requirements.  In one recent case, for example, workers are seeking to certify a class action for at least 40 people who received COBRA notices after the statutory deadline, and another group of about 2,000 people whose COBRA notices may have been legally deficient.  Carnegie v. First Fleet, Inc. Of Tenn., M.D. Fla., Motion for Class Certification 10/29/18.  This particular case claims that not only were the notices sent late, but they did not include the information necessary to enroll in coverage.  Recently, companies such as Capgemini North America, Cushman & Wakefield, and SunTrust Bank have settled similar issues for hundreds of thousands of dollars each.  There is currently another case contending that more than 90% of the employer's housekeeping employees could read only Spanish and thus could not understand the English-only COBRA notices sent by the employer, and a class has been certified of more than 15,000 people in this case.  Vazquez v. Marriott Int'l, Inc., M.D. Fla., Motion for summary judgment 10/26/18.  In the latter case, Marriott contends there is no legal duty to provide a COBRA notice in any language other than English.  In still another case, a judge ordered an employee to pay a $50-a-day fine, attorney's fees and the medical expenses incurred by the plaintiff due to the lack of a proper COBRA notice.  Morehouse v. Steak N Shake, Inc., S.D. Ohio 11/6/18.   

Employers can get lackadaisical in administering their COBRA notice obligations and so hopefully these recent developments will be "wake-up call" that such notices need attention.

LEGAL ISSUES FROM POLITICS IN THE WORKPLACE

There is an old saying among attorneys that you should never discuss politics or religion with clients.  While the same may be said about other situations, it is inevitable that politics will in some cases be discussed at home, and in the work place.  With the intensity and divisiveness of certain current political positions, it is inevitable that some of these discussions can lead to arguments, sometimes heated.  Employers are faced with how to deal with or avoid these confrontations at work, and legal issues related thereto. 

Let's start with issues pertaining to dress, buttons, postings or distribution of political materials, including slogans like "Black Lives Matter" or "Make America Great Again."  What happens if one employee wears a "Black Lives Matter" shirt, and the next day another employee comes in with a "White Lives Matter" shirt?  What happens if the issue pertains to a current legislative or judicial issue, such as minimum wage, immigration or the like?  Consider also the attitudes of workers towards what they consider to be their personal rights.

An employer would seem to have an interest in avoiding confrontations or disputes at work, and in setting forth general rules and policies regarding dress and conduct, insuring that working time is for work.  Such rules and policies should start with the proposition that the employer must have a legitimate work rule or policy in place, and it must be equally applied and enforced.  Thus, an employer could have a dress code for indecent, suggestive or distracting attire or accessories, and even such facially neutral rules might require some flexibility in application due to legally-allowed items.  For example, there is a long history of National Labor Relations Board (NLRB) rulings allowing employees to wear union buttons at work, at least in most circumstances.  Similarly, there is a long history of NLRB rulings dealing with employees' attempt to distribute union-related materials at work and post such materials on company property.  The NLRB generally allows employers to prohibit solicitation during working time, and distribution of materials during working time or in work areas at any time.  The NLRB has supported employer rules prohibiting the posting of materials at work, as long as such rules or policies are enforced in a non-discriminatory manner. 

There are no federal laws that relate to the promotion of the Democratic Party or the Republican Party at work.  Further, being a Republican or Democrat or supporting or not supporting a particular candidate is generally not considered a protected characteristic.  Nevertheless, some policies might be considered as having an adverse impact on a certain protected class of workers and/or be more directly related to a particular issue that might involve protected concerted activity, such as minimum wage or immigration issues.  An example of these issues has arisen when some employees stay away from work to support "immigrant rights" days, or something like that.  The NLRB often considers such activity protected concerted activity and cannot be subject to discipline.  Further, a number of states have laws prohibiting discrimination against employees for engaging in lawful off-duty activities, and this principle would also apply to engaging in certain political activities.

A particularly interesting issue arose at Google, where a white employee said he was fired for expressing his conservative views concerning the advancement of females and minorities, but Google argued he was fired for voicing sexist views about female colleagues and disrupting the work environment.  The employee and others brought labor and class action complaints against Google over these issues and the issues raised are yet to be resolved.

While the issues are complicated, a starting point is for employers to have facially neutral rules or policies concerning dress, solicitation and distribution of materials, the posting of materials on company policy, and threatening or intimidating conduct.  These types of rules at least give the employer a starting point to regulate disruptive conduct at work, provided the policies are facially neutral and consistently enforced.  Even under such facially neutral policies, there may often be the need for competent legal advice for issues that might be related to protected, concerted activity.  The need for advice is particularly important when a political confrontation at work is about a topic that concerns a protected category.

MID-TERM ELECTION RESULTS LIMIT LEGISLATIVE SOLUTIONS TO ISSUES

To the surprise of few, the Democrats took control of the U.S. House of Representatives in the mid-term elections held November 6.  It appears that Democrats will gain 39 seats, which would give them a majority.  In the Senate, Democrats had to defend 26 of the 35 seats on the ballot, including 10 in states the President won.  The Democrats lost seats in Indiana, Missouri, North Dakota, and Florida.  On the other hand, the Democrats picked up Republican seats in Nevada and Arizona, leaving the new Senate with 53 Republicans, a net gain of two seats for the Republicans.

While the Democrats had many more seats to defend in the Senate, the Republicans had many more seats to defend in the gubernatorial races, as Republicans were defending 26 of the 36 states' gubernatorial elections.  It appears that the Democrats picked up seven new gubernatorial seats.   Voting patterns changed somewhat, with Democrats being quite successful in suburban areas around cities, and Republicans carrying rural and small-town America.

The question arising is how these mid-term results will affect labor and employment law, at least over the next two years.  The likely new Chairman of the House Education and Workforce Committee, Bobby Scott (D-Va.), has already announced his agenda.  He plans to make every effort to require the Administration to produce evidence to support regulatory changes benefitting business.  He will likely push legislation to raise the federal minimum wage and make efforts to mandate paid family leave and to expand student aid.  Scott will likely also conduct oversight hearings involving the NLRB, the EEOC, and the Labor Department.

                                                                                                                                                           

There are a few areas in which compromise may lead to bi-partisan legislation.  Some of these areas include infrastructure plans, controls on prescription drug prices, some form of paid family leave, possibly a compromise on a path to legalization for immigrant children known as "Dreamers," and some new approaches to the "gig" economy.

The polls show that the number one issue to voters appeared to be healthcare, with immigration second.  The economy ranked number 3.  In a break from the past, the Democrats were able to outspend Republicans in the most competitive House races, almost 2-1.


Wimberly, Lawson, Steckel, Schneider & Stine

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