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

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

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

Deep Breaths about Wage Theft

As of July 1, 2019, Minnesota’s new Wage Theft Law will go into effect.  If you read anything about this new law, it is easy to assume it places many, many new obligations on employers.  But, like many things, take a deep breath.  The new law isn’t nearly as onerous as you might think.

First, the new law requires employers to follow old laws.  Employers have to pay employees.  Employers have to pay at least minimum wages.  Employers have to pay overtime.   Employers have to have paystubs with a bunch of information on it that specific how the employee earned pay (pay period dates, what is regular pay, what is overtime, what deductions are for, employer name, address, and telephone number, etc.).  None of this is new.  What is new is the amount of penalties that accompany failure to follow these laws.  Those have increased and failure to follow the law could include very real criminal penalties.

Second, if you have offer letters, much of the new “notice” requirements are already in your offer letters.  Start date, how much the employee earns, basis of pay (salary or hourly), when employees will get paid (weekly, biweekly, twice monthly, etc.), exempt vs. nonexempt status, any commission structure (if applicable), what shift the employee is assigned (if applicable), PTO or vacation and sick time accrual, deductions to pay, employer address, and telephone number – these should already be in your offer letter.  The only “new” pieces are when the first payday will be, any allowances (like meals and lodging), and an offer to put the offer letter in a different language if needed.

Third, when employers roll out new policies, you need employees to acknowledge them.  Prior to the new law, employers could roll out new policies without employee acknowledgements.  Now you need them.  To avoid piecemeal acknowledgements, it may be best to review your handbook annually and when updates are necessary, require employees to acknowledge the changes all at the same time once per year.  More frequent changes are going to require more frequent acknowledgements.  This could be a bit of a pain to both do and track.

Fourth, when you change wages, employees need to acknowledge those changes too.  For example, if Jimmy is going to get a raise, you give him a writing (email, letter, performance review) that his wages are increasing and have him acknowledge the increase.  Again, most employers already do this, but now it is mandated by law.

That’s it!  The Wage Theft Law looks like it could be hard to comply with.  But, in reality, it is not as big of a deal as it has been made out to be.  Take a deep breath, you got this.

 

Photo by Pepi Stojanovski on Unsplash

Saying Something Calculus

Full disclosure:  While visiting Consulate General Jerusalem in 2011, Vice President Biden heard it was my birthday and then kissed me on the cheek.  At the time, it was weird.  At times, it was a cool story to tell, but it remains weird. 

“Why didn’t she say something?”  “She should have said, ‘don’t touch me.’”  “We need to have a conversation.”  These are all common responses to women who have shared their uncomfortable interactions with a variety of powerful men – including Vice President Joe Biden.  Look closely at them.  Note how all of them place an obligation on the target of the questionable behavior and never on the person engaging in that behavior.

That is why these responses are flat-out wrong.

I get the argument for the responses.  How is someone supposed to know that their behavior is inappropriate if no one tells them?  Are we expecting everyone to be a walking encyclopedia (or Wikipedia for you youngsters) of cultural norms?  Most certainly not.  That said, you do need to use some emotional intelligence and plain-ole common sense and treat everyone with respect.

Emotional intelligence is “the capacity to be aware of, control, and express one’s emotions, and to handle interpersonal relationships judiciously and empathetically.”  Being aware of other people would suggest that when you’re going in for the hug, you see the look of panic on the individual’s face.  Controlling your own emotions means you don’t kiss a colleague when you successfully complete a project because we don’t kiss in the workplace.  Handling interpersonal relationships judiciously is understanding that not everyone is a hugger.

Common sense – albeit rare contrary to the very term itself – is defined by being aware of social norms and how they change.  Yes, #metoo has changes our cultural norms.  But the movement hasn’t changed all social norms.  Some are still not understood by all.  The way to know what those social norms are is by being aware of what happens culturally.  Read or watch the news.  Read a book.  Watch the news.  Meet with friends and family.  This is how cultural norms are formed and learned.

The target of the inappropriate behavior is doing her or his own calculus.  If I say something here, how will the person respond?  Is it worth sticking my neck out to say “what you did made me feel uncomfortable”?  Doing this mental calculus quickly often results in saying nothing because of ease, expediency, and social respect.  Remember saying something always has a cost.  I knew that stopping the Vice President to tell him that he shouldn’t kiss people would be awkward and potentially off-putting for a visit already fraught with political tight-rope walking, so my calculus was to not say something.

Instead of putting the target in the crosshairs, we should focus on our own behavior.  For this, the most important thing is to lead with respect; respect of the personal autonomy and beliefs of the people you encounter.  In some cases, it would be inappropriate for a woman to touch a religious man, so when I reach out for a handshake, I might receive a polite bow in response.  I am certainly not offended by his decision to stay true to his faith.  And, because I am conforming to a social norm by reaching for a handshake, he is unlikely to be offended by my gesture as well.

One thing I’m leery of is prohibiting touching all together.  If we tell everyone to stop touching, aren’t we turning into robots?  I’ve got some do’s and don’ts on hugging and kissing:

  1. Do know the person you may want to touch before you do it. When you know someone – even if you’ve only interacted online – a hug may be a totally appropriate greeting.  But that’s only because you know them.  People give you clues on whether it is okay to touch.  A stranger?  No hug and definitely no kiss.  By the end of your meeting, it may be okay to hug goodbye.  The only time to kiss goodbye is at the end of a date (and maybe not on the first date).
  2. Do understand that people are all different and people may feel differently day-by-day. Some people will never hug.  Others may hug all the time.  Some will hug occasionally.  Just like we all process grief differently, we all process hugs in different ways on any given day.  A hugger might be having a bad day and the last thing he wants to do is hug.  Be open to this possibility and watch for the clues your emotional intelligence is picking up on.
  3. Don’t assume you can touch everyone because you’re powerful. It is simply not true that “when you’re a star, they let you do it.”  You may be more likely to get away with it because of the power dynamic at play, but no one forgets when someone famous inappropriately touches them.  In fact, if you are in a position of power, like a manager, leader, or “influencer,” it may be appropriate to dial down your normal behavior to hug knowing that others may be made even more uncomfortable because of your status.
  4. Don’t kiss at work.   Not even if your significant other comes to the office.  It’s weird.  (One exception, if you’re in a foreign country and it is socially acceptable to air kiss upon meeting.  Please note the air kiss – no lip contact required.  No lip contact.)

During a recent respectful workplace training, I was asked for the line.  “When does conduct cross the line?”  As I told the gentlemen, I wish I had the answer.  If there was a black/white line, it would be easier for all of us.  However, people have always made things gray and squishy.  It will take our smarts and our hearts to continue to learn about people and make appropriate decisions.

 

Photo by Tim Mossholder on Unsplash