Coronavirus Confidential

Yesterday, Charlie in Accounting had the sniffles.  He hasn’t come into work today.  Tomorrow, he calls you in HR and tells you that he tested positive for coronavirus.  Does this bit of information change what you’ve been doing?  I posted a poll on Twitter yesterday, and here’s the result:

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Over the past couple of weeks, we’ve learned a lot more about the coronavirus and how to prepare for a possible pandemic.  We know we should be washing our hands, not touching our faces, preparing for folks to work from home when they can, researching business interruption insurance to see if it will cover payroll if coronavirus requires us to shutdown, reevaluating if we can afford giving pay increases in light of financial outlooks, and communicating to employees how to prepare.  All of these are important steps to take.

It’s awesome to be prepared.  It is also important to look at our obligations as an employer.  As a worry-wart employment lawyer, one obligation leaps out when we start talking about coronavirus – the obligation to keep medical information confidential.  In a normal, non-pandemic situation, we would not be able to share that Charlie has cancer, arthritis, or any other medical condition.  A pandemic doesn’t change this.  If Charlie tests positive, we can’t share that with employees.  The fact that we know shouldn’t change what we’re doing.  Prepare as though it will hit your neighborhood so that when it does, you don’t violate the ADA.

Now, you might be thinking about moral obligations.  Shouldn’t we be able to tell Suzy because her elderly mother lives with her or Jamal because his kid gets sick a lot?  The answer is still no.  We should tell employees now that when coronavirus gets to our area, they will need to make decisions, like working from home or taking increased PTO, as they are necessary and that we’ll be doing everything we can to keep our workplace safe and healthy, like telling people not to come to work when they’re sick.  Yes, this is hard.

Review the EEOC’s pandemic guidance.  It’s from 2009 but recently re-upped given coronavirus.  Here are some key takeaways for you:

  • You can and SHOULD increase infection-control practices like handwashing and increased cleanings of offices and surfaces
  • You can’t take every employee’s temperature as they enter your offices unless the CDC tells you to
  • You can’t ask employees if they have a disease that makes them more susceptible to the virus
  • You can’t require employees to get a vaccine as religion and disability may prevent it for some employees
  • You can tell employees not to come to work when they’re sick and you can send them home

Instead of waiting for Charlie to get tested, let’s get prepared.  Here are some great resources that may be helpful for you:

  • Check out the University of Minnesota’s CIDRAP center for all the news and maps that you might need
  • Check out Dan Schwartz’s blog for updates on how to prepare
  • Joey Price has a webinar on Tuesday (3/10) for HR on how to prepare
  • HR Bartender posted some tips
  • Listen to Heather Kinzie and I talk about practical tips on how to handle coronavirus on Thursday (3/12) at 4 pm CDT/1 pm AK – no registration necessary!
  • Jeff Nowak has a webinar on Thursday (3/12) on preparedness, the ADA, and FMLA

Now, go get some more soap!

How To Fire

I’m a stereotypical HR lady.  I have two cats, a couple Coach bags, and I like to fire people.  Now, nearly ALL the HR people I know don’t like to fire people, but based only on pop culture, we share the reputation that we like to fire people.  (I actually do, because by the time my client calls me to ask, firing the person is almost always the right decision.  But I digress…)

There comes a time in every HR and management person’s career where they have to fire someone.  There also comes a time when an employment attorney provides advice on how to actually fire someone.  This isn’t necessarily legal advice on whether the term will have legal consequences, but nevertheless, we need to teach people how to fire.   So, without further ado, follow these steps:

  1. Talk with the employee. I ask my clients whether the employee has any idea that they could be fired.  If they don’t, maybe we should step back and go back over performance expectations.  Or, if it is misconduct related, should we give the employee a second (or third) chance?  If the employee knows or the behavior is eggregious, move on to step two.
  2. Gather documents. Hopefully, a manager will have documented conversations with the employee or at least documented expectations the employee was supposed to meet.  If none, ask for some.  Documents can be an email describing conversations, actual write-ups, text messages, or other things that can be printed in some format.  Put all these documents in the employee’s file.
  3. Schedule the termination. No, you don’t have to put the meeting on the employee’s calendar (if they have one), but you need to make sure all the people who need to be there or have post-term action items know of the termination.  This includes the manager, HR, and likely IT. Wednesdays after lunch work best for terminations – the employee has a couple of days to check with an attorney if they believe the termination was unlawful, and more importantly, the team that has just suffered a loss gets two days to recover before the weekend.  If you terminate on a Friday, everyone sits with it all weekend, wondering to themselves what happened, stirring the pot, and potentially causing a bunch more drama.  It’s better to give everyone a couple of days to ask questions, figure out who will take on tasks, etc. before a weekend.  Then, once Monday comes round, the drama has largely dissipated.
  4. Prepare bullets. The manager should be the one actually doing the firing (this is why they make the big bucks), and they’ll need to prepare.  Their bullets will be the expectations the employee didn’t meet, what happened when they didn’t meet those expectations (e.g. impact on the org or team), and the reason for the termination.  HR prepares bullets for what happens after termination like the return of personal belongings, COBRA, what happens with accrued PTO (or vacation and sick time), and severance package information (if any).  Also, prepare for any questions the employee might have that you can anticipate.  Fair warning, people respond to a termination in a bunch of different ways.  You will not be able to anticipate all of them, but knowing the employee will help get you most of the way.
  5. Get together the stuff. Some of the stuff you’ll need to gather include: (1) termination letter; (2) severance agreement (if you want); (3) COBRA notices; (4) box for personal belongings if you want the employee to take their stuff immediately; and (5) information to gather passwords from the employee.  (Talk with IT on this last one.)
  6. Do it. In person.  In private.  If the employee works remotely, schedule a video conference.  No one should get fired over an email, post-it note, or letter alone.  Sometimes, it makes sense to terminate over the phone, but if at all possible, everyone should see the whites of each other’s eyes.
  7. Launch IT. Once you’ve done it, protecting the organization’s trade secrets, confidential information, and other assets (including co-workers) is the top priority.  Contact IT to close down accounts, access, remove access over personal cell phones, or put in motion plans to redirect email and telephone contact from customers, vendors, or other internal folk.  You may even need to talk with security to get keys and/or fobs.  If the organization leases space, tell the landlord who gets access to the building, namely not the fired worker.
  8. Gather their stuff. You can either have the employee pack up their stuff (if they have an office) or pack it up yourself.  If you’re the packer, take pictures of each drawer or shelf before you pack up in case the employee says you forgot something.  This way, you can present pictures to the employee and ask for more specificity as to what they’re looking for.
  9. Talk with the team. When someone gets fired, no matter how much it is needed, the manager and sometimes, HR, needs to meet with the team to go over what happens next.  The manager doesn’t need to share why the term happened in most cases, but easing the minds and anxieties of the team is crucial to getting through the loss.  Be ready with questions about tasks, desk location, and a whole multitude of concerns employees might have.  It’s okay not to know all the answers, but assuring employees you’ll get back to them is crucial.
  10. Regroup. Once the termination is over and maybe even a couple days later, meet with the manager again to go over what could have been done differently – not necessarily better, just differently.  Could have expectations been set better?  Could more discussions could have been had?  Should we shift how tasks are assigned?  This is a really important opportunity to learn something from what just happened.  Don’t skip this step!

No one thinks terminations are actually fun – they’re not.  That said, firing someone is a necessary part of effectively running a business.  Every business.  If you haven’t ever done it, then it’s likely that you should have.  Remember, it is SIGNIFICANTLY more expensive to keep someone around who isn’t meeting expectations or is toxic to your environment.

 

Photo by Ricardo Gomez Angel on Unsplash

Sometimes, the Law Sucks

This evening, three individuals lost their jobs – through reassignment or termination – because they truthfully testified under oath in a congressional hearing regarding their knowledge of unlawful behavior.  While the law recognizes that termination because of testimony about illegal activity is unlawful, sometimes, the law doesn’t have a good remedy.

For example, a woman is sexually assaulted at work.  She reports the assault, and the bad actor is arrested and terminated.  If the bad actor was a co-worker with no supervisory responsibilities or prior history of assault, the woman doesn’t have a claim against the employer regardless of how egregious the assault was.  She could possibly have a workers’ compensation claim, but no claim for harassment due to the affirmative defense the employer would likely use to its advantage.

Another, a black man is forced to resign after his employer did nothing to stop near-constant harassing conduct.  He finds a better paying job right away, so he has no wage loss damages whatsoever.  He may have some emotional distress damages, but he never saw a therapist, has no medical records establishing severe emotional distress, and is sleeping well now.  When plaintiff lawyers meet with him and evaluate whether to take his case, they decide his damages are not sufficient to cover their costs given it’s highly unlikely that they will get through trial.  So, for business reason, they don’t take his case as many others like them.

Yet, one more.  Ninety women have come forward to tell their stories of Harvey Weinstein.  Yet, only a few have claims within the statute of limitations and have convinced prosecutors to try him for his sexual misconduct.  Others did not bring claims within the statute of limitations of the few civil claims they may claim.  For most women, there is no recourse.

So, yes.  Sometimes, the law doesn’t have an appropriate remedy.  Sometimes, it just plain sucks.  If you’d like it not to suck, vote, talk with your legislators, and remember to vote.

 

Photo by Element5 Digital on Unsplash

Pens & Company Ink

Recently, I gave a presentation on sexual harassment to a group of compliance professionals from some of the largest organizations in the Midwest.  At one point, an audience member called me a Sexual McCarthyist because I said CEOs shouldn’t have relationships – even consensual ones – with anyone in the company.  Given the news out of Chicago on Sunday, let’s go over why.

When a CEO engages in sexual harassment, the organization is vicariously liable for the conduct  Citing U.S. Supreme Court case Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998), here’s what the EEOC’s Guidance says:

An employer is liable for unlawful harassment whenever the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.”

The Guidance goes further and lists individuals who could be considered an organization’s proxy, including president, owner, partner, and corporate officer – like a CEO.  Vicarious liability means the organization has no defense to a harassment claim and is automatically liable if the conduct was indeed harassment.

So, was the conduct harassment?  Well, let me take all of your hopeless romantic hearts and crush them.  Relationships fail at a remarkable rate.  Think of all the people you have to date before you find “the one” and then “the one” has a better-than-fair chance of ending in divorce.

Now, imagine you’re a CEO.  You have a significant amount of authority over everyone in your organization.  You start flirting with an employee.  The employee may feel that they don’t have the option to say no to a couple of dates.  Things start to heat up, but something is not right.  The employee feels they can’t break up for fear of losing their job or ending their career (like blacklisting, etc.).  So, even though they may have liked the attention at the start, they can’t stop when it turns ugly.  Now, the relationship is no longer consensual.  This is harassment.

Or, what if the break-up is consensual but now the CEO has to rate the employee’s performance?  The employee is afraid that the CEO will be vindictive or will treat them unfairly because of the break-up.  This could be retaliation.

The best thing an organization can do is prohibit CEOs (and other C-suite individuals) from having relationships at work.  Period.  Institute a policy.  Talk with the board and leadership.  Explain you will enforce this.  Then, if it happens, take action.  This was what happened at McDonald’s.  This is what happened at Intel.

As my grandfather said (to his 14-year-old granddaughter (see, I was made for this work)), “Don’t get your money where you get your honey,” and “Don’t dip your pen in the company ink.”  If you’re a CEO out there, take these idioms to heart.  Not following them could end your career.

 

 

Photo by Aaron Burden on Unsplash

The Law is the Basement

My house was built in the late 1890s.  It still has a dark closet that once functioned as a root cellar.  It’s now full of odd, rarely used cooking equipment, Christmas ornaments, and creepy cobwebs.  We now call it the punishment room as a threat designed to spur good behavior in my guys.  No one wants to be in there, but technically, it is a functional closet.

The law is often like that room.  It tells us the minimum of what is expected of us – what is the basement of how we can treat each other.  It’s functional but undesirable.  Just like my guys, no one wants to be in the basement.

But sometimes, the law isn’t even the basement.  It’s lower.  Much lower.  Never has that been clearer than today.  Today, the Supreme Court is hearing arguments in three cases involving whether “because of sex” protects individuals based on their LGBTQ status.  If the Court finds Title VII doesn’t protect the LGBTQ community, employers in 28 states will be able to fire someone because of who they are and who they love.  What’s really scary is that here is a real possibility the Supreme Court will find that the LGBTQ community is not protected.

What will this mean for employers?  I hope nothing.  I hope employers understand how stupid (yes, I wrote “stupid”) it is to discriminate on this basis.  Not only is it unlawful in many states – including Minnesota – it is bad for business.  At least one prominent study showed how LGBTQ-supportive policies were great for employees and business alike.  Being inclusive is the right thing to do.  Period.

The U.S. House of Representatives has passed the Equality Act that would protect the LGBTQ community regardless of how the Supreme Court finds.  But, Senate Majority Leader Mitch McConnell refuses to allow a vote on the bill.  It’s likely the bill would pass if it reached the Senate floor.  In the meantime, the message to employers is that Congress doesn’t care if you discriminate.

But you don’t have to.  Employers don’t have to do the minimum.  You can keep employees out of the basement.  We should treat each other fairly and kindly regardless of LGBTQ status.  Here’s hoping the Supreme Court does the right thing, and the Senate does too.

In the meantime, no one can define your worth.  You’re all worthy.  Sending love and hope to everyone today.

 

Photo by isaac jarnagin on Unsplash

Why Talking Remedies Is A Bad Idea

I get to do a TON of respectful workplace trainings, otherwise known as harassment training.  It is one of my favorite things to do.  However, a new requirement for harassment training irks me to no end.

It’s the requirement under California, Illinois, New York, and potentially more state laws that requires that we talk about the remedies available to harassment victims.  I don’t hate the remedies – victims of harassment are entitled to all the remedies out there and then some.  I just don’t like talking about them in training.

Why you ask?  Victims of harassment are already plagued with a seemingly endless list of reasons NOT to report harassment, including retaliation, exposing an embarrassing incident(s), fear of being judged about the clothes they wear, fear of not being able to pay their mortgage, rent, car payment, student loan, child care bills, etc.  Telling them about the remedies available to them, all of which could bankrupt the very organization they’re working for, adds an additional burden to a victim.  Victims of harassment don’t always want to bring down their employer – they want to bring down the harasser or at the very least, make the conduct stop.  They don’t want their friends to lose their jobs too.  Victims went to work for their employer because they believed in the mission, need the work, and want to work there.  Talking about the hundreds of thousands of dollars at play in a harassment lawsuit doesn’t provide comfort, it adds to the load.

In training, I’m doing my darndest to encourage targets of harassment to tell HR or any manager about what is happening.  Trying to reduce the burdens of reporting, encouraging co-workers to help, promising retaliation will not happen, and that HR is a safe place for them to go.  Taking a hard left to “your report could cost this organization tons of money” is halting transition without out much benefit.

The required remedies discussion was probably designed to scare harassers.  It should!  But by and large, employers are on the hook for the money, not the individual harasser.  The harasser is rarely held to account.  They may lose their jobs, but they don’t owe restitution to the victim or even the employer.  It is the organization and its employees who suffer most through the time and resources taken up by a lawsuit.  Yes, in many cases, the organization needed to do better to protect employees, but spelling out its possible demise is not going to convince a victim to raise their voice.

Employers need to do better without a doubt.  And, a good training is a great step.  Scaring victims even more is not the answer.  Dear Legislators, please understand this and let me do my job.  I really like it, and I’m pretty good at it.

End rant.  Thank you.

 

Photo by Gaelle Marcel on Unsplash