The NLRB’s Bad Decision

About a third of the work I do is workplace investigations – everything from culture reviews and employee misconduct to harassment.  I love them!  Recently, the National Labor Relations Board issued a new decision that greatly affects employer policies around investigations.  Essentially, the Board overturned a decision that allowed employees to talk about an ongoing investigation.  Now, employers can prohibit employees from talking about an investigation.  In fact, employees can now get fired for talking about it.

I’m not going to lie.  I really don’t like this decision.  I know, I know.  My perspective is the polar opposite of nearly every other investigator out there.  But hear me out.  I’ve got two reasons why this decision is bad for employers and employees.

First, #metoo took off when women talked with each other about their experiences.  When Jodi Kantor, Megan Twohey, and Ronan Farrow started meeting with women in Harvey Weinstein’s sphere, the more women they spoke to, the more harassment they found.  Once one person came forward on the record, it was easier for others to come forward and share how much a monster Harvey really was.  Now, there are 90 women who have come forward.  The same thing happens in companies that don’t end up in headlines.  When one person comes forward, others follow suit.  (Pun not intended.)

Harassment targets fear speaking out alone, and intentionally, harassers isolate and separate their targets so they feel all alone and that no one will believe them.  When targets know someone else has had a similar experience and they’re willing to report it too, they may even come forward together.  So, knowing about others and talking with them gets targets to report.  Something employers want, right?

Second, during an investigation, it is incredibly common to have reluctant witnesses – those who give you one-word answers and are all jittery when they sit across from you.  You listen to them and know they’re not sharing everything.  No matter how much prodding you do, they clam up.  If the investigation lasts long enough, the witness may come back, ask to speak with you again, and this time, they share more.  They may even share everything, including their experience being a target of harassment or provide the evidence you’ve been looking for.  When you ask why the change of heart in coming forward, the answer is often that they spoke to someone else and they felt they needed to “do the right thing.”  It makes it more difficult to evaluate them as a witness, but if they didn’t speak with anyone, we’d never get their information.

Now, other investigators have argued that they don’t want employees to chat with each other because they could “sync” stories or lie and that would interfere with their investigations.  I get that, but I’d rather have employees come tell me everything knowing that they’re not the only ones sticking their necks out.  And, if employees sync their stories, the investigator will hear the phrases suggesting they’ve colluded and are not genuine.  We’re trained in this.  We have experience in this.  We see it a lot.  We should be able to handle this separate from a policy prohibiting employees talking that puts their jobs at risk.

In their new decision, the Board argues that we can’t offer employees confidentiality in what they tell us if the employer doesn’t prohibit employees from talking about the investigation.  But no investigator says, “Well, Suzy told me XYZ” – we don’t share what people tell us.  In most cases, I don’t even share names with decision-makers.  If I told decision-makers exactly who said what, retaliation would be a real possibility.  So, I tell folks I interview that I don’t share names, and this comforts them, freeing them to open up.  If they talk with coworkers, they’ve picked people they’re comfortable with.  I share the important facts with decision-makers that they need to make any decision they need to.  So, the Board’s argument is hooey.

The National Labor Relations Act protects employees from discipline (including termination) when they get together to talk about the terms and conditions of employment.  This was the basis of the decision the Board overturned.  In some ways, the Board’s new decision feels like a response to the #metoo movement and an attempt to keep employees from talking about their experiences by allowing employers to have strict policies against employee talking about an investigation.  And, this is a shame.  Employers, trust your investigators to handle the information you do not need to adopt a policy in accordance with the Board’s new decision.  I recommend against it.

 

Photo by Steve Halama on Unsplash

CEOs & Boards Need Training Too

“Do CEOs get trained on harassment?”  That was the question from a lovely individual who recently went through the wringer of having to let a C-suite-level leader go in her organization.  My answer was “they should.”

Based on media reports over the past year, it doesn’t appear that CEOs, anyone in the C-suite actually get harassment training.  They may pay for training for their own staff and even for managers, but requiring the attendance of CEOs and even boards of directors appears to be few and far between.  In just the past year, CEOs at the following companies have either stepped down in the midst of scandal or were fired:

These are prominent companies.  Companies with significant public profiles.  Leaders who should have known better.  Leaders who did not receive training, who did receive training and didn’t comprehend the consequences, or who simply didn’t care.  It’s quite possible that’s where we are – some leaders may believe the rules do not apply to them.

The law has a different view.  The law says that CEOs ARE your organization.  When they engage in harassment, the organization is automatically liable.  (Yes, you read that correctly.  Automatically.  Look at Section VI in the link.)  Because CEOs – no matter the size of your organization – are your public face, they are the “alter ego” of the organization.  What they do binds the organization in business and in harassment.  For this reason, CEOs need to understand the gravity that comes with their bad decisions and actions.  They must understand that sending an inappropriate text, making a sexual request, or touching an employee improperly has significant consequences.  That it can even force the closure or bankruptcy of the organization.  It could be the end of the road.

So, I’m issuing you a challenge HR friends.  As you get ready for 2019 and you organize your training schedule for the year, include your leaders in harassment training.  Involve your board of directors.  Make sure that they attend.  Go over what happens if they engage in harassment.  Explain the investigative process –their technology will be reviewed, including texts and emails.  If you do this, you’ll help protect your organization and hopefully prevent harassment.

Quick story – I once did two trainings for a company.  On the first day, I trained all the managers and leadership, including the CEO.  The second day, I trained employees.  To show how important the training was to the company, the CEO introduced me.  He started with the expected “we take this very seriously” and then said, “I think you’ll like Kate, she’s loose.”  Now, he meant that I was not a stuffy attorney, but nevertheless, that was lesson number one of the training.  He turned all sorts of red, apologized immediately, and we all had a laugh.  I promise you, no one in that organization who was there will forget that and everyone learned something.

If you need help planning your training, take a look here.

 

Photo by Tyler B on Unsplash

Getting Harassment Training Right

Over the last year, I’ve done hundreds of respectful workplace (a/k/a harassment) trainings.  I love this training.  It is my favorite.  This is training is so vital to every organization that I will move vacations to do it.  Seriously.

I speak publicly on harassment training.  Just this year, I’ve done a DisruptHR talk, the North Dakota’s Workforce Development Conference, Minnesota SHRM, and soon the Minnesota Association of Legal Administrators conference on this topic.

I’ve even written a lot on harassment training.  (See here and here for training specifically, and here and here for more general training references.)  The writing has helped me focus my own trainings, making them better for my clients.

After this year (and the years before that), I’ve come up with my own philosophy on harassment training – what makes it good, what can we do better, what should employers consider, etc.  Ultimate Software has been kind enough to include my diatribe on the subject in their collection of white papers.  You can find it here.   Please, if you’re considering putting harassment training on your list of to-dos for 2019, read it.

Sexism is Unlawful Too

Did you know that sexism is against the law all by itself?  Individuals can be sexist without sexually harassing someone?  Much of the #MeToo has focused on the ravages of sexual harassment  #TimesUp has focused a bit differently, focusing on the lack of advancement of women and wage gap issues.  This distinction is important.  While conduct that could constitute sexual harassment is often included in a sex discrimination cases, sexism by itself is also against the law.

Title VII’s prohibition on discrimination “based upon sex” includes many things (and arguably more things).  This “because of sex” provision in the law makes both sexism and sexual harassment unlawful.  It is just as unlawful to engage in sexist behavior as it is to sexually harass someone.  Both are demeaning, discriminatory, and dastardly.

Let’s start with sexual harassment.  Under the law, sexual harassment can be:  (1) quid pro quo which conditions employment (or advancement) on sexual favors or enduring sexual conduct; or (2) unwelcome conduct or comments that create a work environment that is intimidating, hostile, or offensive.  (We’ve dealt with welcomeness in another post.)  Often, sexual harassment cases include sexual touching, like sexual assault, but they don’t need to.  Frequent comments about someone’s sex life or sexual organs (including breasts) can create a hostile work environment.  Moreover, sexual harassment can be unlawful even if it has nothing to do with sexual desire.  It only has to do with sex and/or sexual stereotypes.

Plain, old-fashioned sexism can also cause a hostile work environment that is unlawful under Title VII.  Sexism is unlawful when enduring the offensive conduct or comments is a condition of employment or the conduct or comments are severe or pervasive enough to create a work environment is intimidating, hostile, or offensive.  Sounds familiar, right?  It should.  Yet, sexism doesn’t need to have anything to do with the act of sex – just a person’s sex.

Take for example demeaning comments like “A woman’s place is in the kitchen,” “Women should always be barefoot and pregnant,” “Grow a pair” or (my favorite excuse for derogatory behavior) “Boys will be boys.”  These comments are designed to demean women.  Period.  When these comments are pervasive (a/k/a happen a lot), they create a work environment that is hostile to women and unlawful.  When the comments are paired with conduct, such as only assigning men to do lifting tasks or segregating the sexes to handle particular work, the employer can (and should) be on the hook for discrimination.

These derogatory comments are often coupled with other signs of sexism.  This includes disparities in pay, lack of advancement, and even underrepresentation of women throughout an organization.  All of these need to be tackled even though they’re hard.  And, all need to be tackled even if no allegations of sexual harassment exist.

When an HR pro gets a report of sexism, she should treat it just as she would a report of racism.  Could the comments be demeaning to women?   Could the comments be offensive?  Could the conduct be an attempt to separate employees by gender?  Are other issues – like pay and representation – affected by sexism?  The question of whether any sexual activity – comments or conduct – occurred does not need to enter into the analysis unless it was reported too.  Just because sexual behavior is not included doesn’t mean the employer gets off scot-free.  Sexism is just as unlawful all by its lonesome.

 

Photo by Giacomo Ferroni on Unsplash

 

 

Harassment & Being the Boss

In response to the #MeToo and #TimesUp movements, state legislatures and localities are taking action, including requiring sexual harassment training and policies that explain where employees can turn if they don’t believe their employer has handled the situation appropriately.  New York’s new law requires that policies explain that employees will be disciplined for engaging in harassment and – perhaps most importantly – managers will be disciplined when they allow harassment to happen.

Did you read that?  Managers will be disciplined for letting harassment continue. This is where NBC, CBS, and nearly every employer who makes the news has allegedly failed – a manager knew about the behavior and didn’t make it stop.  This, ladies and gentlemen, is why manager training is critical to the end of harassment.

The law focuses on managers because managers are the employer.  They make crucial decisions, like hiring and firing.  They sign contracts.  Often, the buck stops with them even if they are in the dreaded middle management.  This means managers are responsible to take action when they get wind of harassment, but often, managers don’t understand the crucial role they play in preventing and stopping harassment.  As legislative bodies take more and more action, here are some of the lessons you can incorporate into your training now:

Managers must know the work environment they create and manage.  For a manager, the word “manage” is in her title.  So, she must actually manage.  Merriam-Webster defines the verb “manage” as “to direct or carry on business or affairs.”  No one can effectively do this if she doesn’t know what is going on or doesn’t understand how her people interact.  So, dear manager, know your people.  Also, set a tone of respect with your people.  Be the example.  (You can have bad days – pobody’s nerfect – but when you make a mistake, acknowledge it and move forward.)  While the “doing” might be more fun, the “managing” is your job.  When you know the work environment, you can take steps to prevent harassment.

Managers have the power to do something.  A manager can’t throw her hands up when she learns about possible harassment.  Harassment requires her to dig in, tackle the problem, and sometimes, make some really difficult decisions.  Organizations may differ on what exactly they want the manager to do – report to HR, step in and separate the people, suspend the alleged harasser, discipline, etc. – so train the manager on what to do and who to talk to when she needs help.  (Remember, managers need to know enough.)  In manager training, go through scenarios, talk through what the organization would want the managers to do.  This will invite participation, just the kind of interactive dialogue the EEOC and state agencies want in harassment training.

There is no such thing as an official complaint.  A whiff, a rumor, seeing someone uncomfortable or crying, a conversation between a manager and an employee that’s “just between us” all trigger action by an employer.  In order to have a defense to harassment claim, an employer must take “timely and appropriate action” when it learns of harassment, so if a manager learns of harassment, she puts the employer on the hook to take action.  Waiting for an “official” complaint is not only poor management, it creates liability for an employer.  No manager wants to do that.

You will get in trouble for harassing too.  Because the law treats managers as the employer, when a manager engages in harassment, the employer can automatically be liable for the harassment.  Managers have to understand this.

Harassment hasn’t always been clear, and the courts haven’t helped much.  That said, we have an ethical obligation to help employees and managers understand it and how we define respect in our workplaces.  The difference between “You look nice today” and “That dress hugs you in all the right ways” is respect.  One statement is a respectful compliment.  The other can be characterized as harassment.  Will your managers step in when they hear the dress one?  Will they know what to do?  Your managers absolutely need to know what to do at the moment the statement is made or when an employee tells what happened.  So, train them.  Please.

 

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