Union Posters Deadline Has Changed/Five Signs That Your Sexual Harassment Case May Be a Loser

November 28, 2011

Union Poster Not Required Until January 21, 2012

 The NLRB has changed the implementation date for its recently issued employee-rights notice.  The new effective date is January 31, 2012.  The NLRB’s stated reason for the postponement is to “allow for further education and outreach” in light of “queries from businesses and trade organizations . . . about which businesses fall under the Board’s jurisdiction.”   Coincidentally, however, the NLRB’s newly required poster currently is under both legislative and legal attack.  Legislation has been introduced to block implementation of the new poster, and lawsuits have been filed by various groups seeking to enjoin implementation.  Stay tuned for further developments on this contested issue.

 Five Signs That Your Sexual Harassment Case May Be a Loser

How can you, as an employer, know when a sexual harassment case is a loser?

 Here are five factors that may lean against you!

 The accused is a member of management and has admitted to the harassment, OR he hasn’t admitted it, but you are pretty sure he’s guilty.

 This one is obvious. If you have an admission, or just a terrible feeling in your gut that won’t go away, your case may be a loser. 

Your work environment is so bad that you “should have known” the harassment was going on.

Normally, an employer is not liable for sexual harassment that it’s unaware of, which stands to reason. After all, how can you correct a problem you didn’t know existed? BUT . . . and there’s always a “but,” isn’t there? If a work environment is so bad that anyone with eyes to see and ears to hear would have been aware of it, then a court is likely to find that you had “constructive knowledge” of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.

You got a complaint of harassment, and then you sat on it.

 Ideally, the investigation of a harassment complaint will begin the same day you get it (or even earlier, if you had actual or “constructive” knowledge of it before you got the complaint). It looks bad when you get a complaint and don’t even start interviewing anybody until two or three weeks later or — even worse — when you wait until the day you get the EEOC charge or the nasty letter from the attorney in the mail. If there is a delay and you don’t have a good excuse, your case may be a loser.

You can’t even remember the last time you had harassment training.

The EEOC/DFEH and a good plaintiff’s lawyer will always ask members of management whether they’ve had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this:  (1) Your company will look very bad if you haven’t done it recently, and (2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner.  She can plausibly claim that she didn’t report it because she didn’t know she was supposed to report it, or that she didn’t know how to do it.

You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, “high-risk behaviors,” what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you’ll conduct annual harassment training for non-management employees, too, which should cover the same topics but in more abbreviated form.

Note: California employers that have 50 or more employees must have their sexual harassment training for managers and supervisors completed by December 31, 2012.

You have established that “quid pro quo” harassment may have occurred.

 Let’s say an employee comes to you and says that she was demoted because she did not surrender to her boss’s “charms.” Let’s further say that you have done everything right — you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and promoted her as a “thank-you” for coming forward. Unfortunately, you are still liable (“strictly liable”) under the law because the employee suffered what the courts call a “tangible job detriment” as a result of the alleged harassment. All the good things you have done are relevant to damages but not to liability, meaning that at a minimum you could be stuck with nominal damages and his/her attorneys’ fees.

Be proactive, not reactive, in this all important landmine of litigation. Get out on top with your policies, practices, and procedures!

Social Media: Are You Managing it Effectively and Appropriately?/Helpful Websites For “Obamacare” Requirements

November 21, 2011

Social Media: Are you managing it effectively and appropriately?

Surveys, summaries, and statistics are all the rage now.   They are popping up everywhere, with everyone trying to get a handle on this social media thing.   I have previously written articles about social media and its use in the workplace. Well, employees are continuing to use it in a dramatic fashion every day which can land you in the litigation mine field if you do not have the proper policies in place.  A new survey has been issued by the Society for Human Resource Management (“SHRM”) that provides some interesting information.

The survey’s findings are based on 532 “randomly selected HR professionals” who were asked various questions during the period from December 17, 2010 through February 1, 2011.   Many of the findings are extremely enlightening:

            –   31% of the reporting companies monitor their employees’ social media use, while 43% still block all access to social media on company-owned computers and devices.

            –   68% of the reporting companies use social media themselves to “reach external audiences”, including for relationship building and the promotion of products and services.   Almost half of the companies just started using social media for these purposes within the past 1 to 2 years.

            –   Facebook (45%) and LinkedIn (34%) appear to be the platforms used most for communicating with outside parties.

            –   73% of the reporting companies still do not provide any training to employees who use social media on behalf of their company.

Everybody is “doing” social media.   We all know that, and SHRM’s survey is the latest update on the numbers and anecdotes about how companies are using and not using social media in the course of their day-to-day business activities.

So the question remains, not whether you should recognize that social media exists in the workplace, but, rather:   Are you managing it effectively and appropriately? If not, get those personnel policies, practices, and procedures, updated as soon as possible.


Helpful Websites regarding the employers’ responsibilities for healthcare (Obamacare).

Many employers are about to embark on the annual open enrollment period where they modify their health benefits (or at least consider doing so) and undergo the process of enrolling employees for the 2012 calendar year.  Certain provisions of Obamacare (officially known as the Patient Protection and Affordable Care Act or “PPACA” for short), have already taken effect.  Others will come into play over the next 26 months.  This blog does not allow for a comprehensive review of the PPACA.  However, I wanted to provide  some resources that are accessible, without cost, to help guide employers as they approach open enrollment and as we get closer to 2014 when all the Act’s provisions are scheduled to be in place.

1. www.healthcare.ca.gov/priorities/healthbenefitexchange.aspx

The PPACA has provisions that allow states to set up exchanges to make it easier for individuals and small businesses to compare plans and buy health insurance on the private market.  California was one of the first states to begin working on this.  This website provides good information on the California Health Benefit Exchange.

2. www.healthcarelawsuits.org

There have been many challenges to the PPACA in the courts.  If these are successful, the PPACA may not move forward as intended.  Only time will tell whether these challenges will derail the PPACA completely, partially or not at all.  Six writs of certiorari are currently before the United States Supreme Court and the mandates of Obamacare are under attack based on constitutional grounds.  This website provides a good summary of the status of the various lawsuits challenging the PPACA.

3. www.kff.org/healthreform/8061.cfm

On this website, the Henry J. Kaiser Family Foundation provides a good summary of the key provisions of the PPACA and a helpful Implementation Timeline.

4. www.dol.gov/ebsa/healthreform/

This is the United States Department of Labor’s website on the PPACA.  It contains comprehensive information on the Act, including but not limited to access to the proposed DOL regulations related to the Act.

5. http://www.healthcare.gov/law/resources/ca.html

This website provides information on implementation of the PPACA in California.

I hope this information is helpful to you.


Sexual Harassment Case Thrown Out By Trial Judge!

November 14, 2011

In an unusually helpful ruling in favor of a California employer, the Fourth District Court of Appeal upheld an Orange County trial court’s decision to throw out a jury verdict finding sexual harassment.

In Brennan v. Townsend & O’Leary, Plaintiff Stephanie Brennan started with advertising agency Townsend & O’Leary as an assistant media planner in 1991. Brennan told the jury that she regularly confided in O’Leary and he asked her about her personal and dating life.  She testified to a variety of sexually explicit conversations both with O’Leary and more generally at executive meetings during 2000 and 2001. She described a number of Christmas parties featuring off-color Santas in 2002 or 2003.  Finally, in August 2004, Brennan inadvertently obtained an email written by individual co-defendant Scott Montgomery referring to Brennan as “big-titted” and “mindless.”  Understandably, Brennan complained about the email, a complaint that resulted in a written reprimand and warning issued to Montgomery.  In addition, Brennan sought out and talked to current and former agency employees to find other examples of sexual harassment.  In the Fall of 2004, Brennan told O’Leary that other employees had harassment complaints, but that they would be unwilling to speak with him.  She threatened to leave the agency.  O’Leary repeatedly asked Plaintiff to stay with the agency, to cooperate in investigating sexual harassment with an outside investigator, and to “restore” the company environment.  Brennan responded that she wished to leave and that she expected a compensation package for her “constructive termination.”  When she did not get the expected package, Brennan told O’Leary that she was going to “move on” with her attorney and gave him a letter from her lawyer in October 2004.  In November, Brennan refused to cooperate with the outside investigator the agency hired to investigate sexual harassment and finally in January she submitted her written resignation.

The jury concluded that Brennan was the victim of sexual harassment and awarded $200,000 from the agency, and $50,000 from individual defendant Montgomery, author of the offensive email.  The trial judge threw out the verdict, holding that there was no substantial evidence to support a finding of hostile work environment harassment.  The Court of Appeal agreed, ruling that as a matter of law, O’Leary’s evidence was insufficient to meet the “severe or pervasive” standard necessary to support a finding of hostile work environment.  The court explained:  “There is no recovery for harassment that is “occasional, isolated, sporadic or trivial,” and “an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’”

The Court quickly dismissed any suggestion that the behavior Brennan complained of was “severe” and focused instead on whether it was “pervasive.”  The Court went on to note that the only harassment directed at O’Leary personally was the single “rude, unprofessional” email referring to her as a “big-titted, mindless one.”  In addition, she witnessed three sexually offensive incidents over three years that were directed at others.  “Such evidence simply does not show a concerted pattern of harassment.”  The Court was equally unimpressed by evidence of Steve O’Leary’s personal conversations of Brennan’s personal life, many of which the plaintiff admitted were not unwelcome of offensive, and the third-party complaints of harassment Brennan uncovered in her personal investigation.  Simply put, the Court found that the evidence was “not enough” to support the verdict.

While the Brennan decision is a “win” for employers, it was only after a costly and likely painful fight that could have been avoided had no inappropriate workplace conduct occurred.

Two Important Updates On Previous Blogs

November 6, 2011

New Union Poster is Now Available But is Being Challenged

As I previously informed you in a previous blog, about a new posting requirement established by NLRB regulation that requires private sector employers to post a detailed notice informing their employees about their rights to unionize. As you recall, this positng is required to be posted by November 22, 2011.

Several developments have occurred in the last two weeks:

1. NLRB Poster is Now Available

Even though the requirement to post the notice about union rights is not effective until November, the NLRB has already prepared the poster and made it available on its website. The poster just became available in the last few days and can be found and/or downloaded at www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf.

2. NAM Sues to Block Implementation

On Thursday September 8, the National Association of Manufacturers filed a lawsuit in Federal District Court in Washington DC, seeking an injunction to stop implementation of the NLRB’s regulatory mandate. The lawsuit claims that the NLRB lacks the authority to mandate a posting requirement and that such a requirement can only come from Congress in the form of legislation.

3. House Legislation Introduced to Block Posting Requirement

Congressman Ben Quayle introduced HR 2833, The Employee Workplace Freedom Act, to block the implementation of the NLRB regulation requiring the new posting. The Employee Workplace Freedom Act seems to repeal the regulation and specifically provides that The National Labor Relations Board shall not enforce or promulgate any rule that requires employers to post notices relating to the National Labor Relations Act.

I will continue to post developments on this subject as they arise.

Wage Payment Notice

We previously posted on California’s passage of the Wage Theft Protection Act of 2011 (AB 469), which requires California employers to start providing written notice to new hires of wage payment information as well as various other categories of information. California’s Labor Commissioner is required to prepare a template for employers to use for this purpose.  The Labor Commissioner has published on its website that this template, along with guidance on compliance, will be available in mid-December. 

I will post this information as soon as it becomes available.