Rick Bell – Page 37

June 5, 2019September 5, 2023

How an Employee-centric HR Communications Strategy Impacts Your Organization

employee communication, hearing, talk, schedules

In today’s digital day and age, designing an HR communications strategy that effectively reaches an increasingly dispersed, distracted workforce is critical to increase employee engagement — and ensure employees are informed and aligned to meet broader business objectives.

Lack of employee engagement remains rampant among organizations, with a whopping 85 percent of employees today not engaged at work. Yet when employees are connected, organizations see an increase in productivity by 20 percent to 25 percent — making internal communications increasingly critical to the business. Those organizations that don’t prioritize their employees and ensure they are well connected will resign themselves to a serious disadvantage.

Also Read: Focus on Employee Work Passion, Not Employee Engagement

Yet, as companies embark on efforts to modernize the employee experience, many HR and communications teams struggle to scale communications in the face of resource and staffing constraints, often with ratios as low as 1 communicator to 20,000 employees. This reality makes it exceedingly challenging to create, deliver and measure content that is relevant and valuable to all different types of employees. HR and communications teams are delivering greater business impact but pulled in more directions than ever, and are in dire need of a scalable, targeted way to carry out their strategies to support broader business initiatives.

With this in mind, here are a few factors to consider as you embark on designing a communications approach that empowers HR, communicators and employees alike — and why it matters to your business goals:

Connected employees directly impact customer satisfaction

Employees’ value extends well beyond what you pay them in salary. Employees need to feel appreciated and recognized, despite what number appears on their paychecks. In fact, 69 percent of workers said they would work harder if they were recognized and appreciated more, and Gartner predicts that by 2020, 70 percent of companies will implement technology for employee recognition and reward.

What’s more, a 5 percent increase in employee engagement can lead to a 3 percent jump in a company’s revenue. Effective communications not only makes employees feel like they matter to their organization, but also emphasizes their role in contributing to a greater goal and broader effort among colleagues — and that directly affects business outcomes.

Despite the clear business benefits of HR communications, most companies still rely on a single channel for communications. Employees have unique preferences for when, how and where they access communications, and HR and internal communications teams need to adopt a multi-channel strategy to reach all employees — regardless of location, job function and the devices they use.

Particularly as many employees today are desk-less, engaging employees wherever they may be is foundational to successfully connecting, informing and building trust with employees. From a company mobile app to digital signage, email, print and more, HR and communications teams must incorporate multiple, targeted channels in their toolkit, with a system to integrate all channels so they aren’t stuck managing multiple platforms.

And not only does the channel matter, but so does the message. What might work on email may not work for mobile or other mediums, and communications should be designed for consumption on each specific channel you plan to use. It is also important to train and encourage team and frontline managers to create their own content that caters to their team members and direct reports — making content more local and relevant not only ensures the right messages get to the right employees, but also alleviates the burden on HR and communications teams in creating all content.

Build Employee Retention With Impactful Communications

As an organization grows, it is important to share engaging and compelling messages to motivate, inform and retain employees. Shockingly, only 10 percent of employees today report knowing what’s going on in their company at any given time — meaning they are not aligned to larger business goals, setting up those initiatives to fail.

Employee retention doesn’t stop with employee orientation. More impactful engagement goes well beyond day one, starting with studying and understanding your employees — who they are, their unique preferences and motivations. Much like a marketer who analyzes the customer journey, building employee personas and mapping out their journey will allow you to deliver more targeted, effective communications personalized to their needs.

Moreover, organizations should look to not only share relevant, customized communications across channels with employees, but also establish a platform where they can quickly search for and find information they need to be informed at all times. An outdated Intranet for sharing employee information simply won’t suffice when employee engagement, productivity and the bottom line are at stake.

Successful HR communication is vital in engaging employees, maintaining a thriving company culture and boosting both individual employees and the organization. By taking a more targeted, customized and multi-channel approach to communications, organizations can elevate HR and communications teams to support broader business outcomes, while reaping the benefits of greater employee engagement, productivity and retention.

June 4, 2019June 29, 2023

Proposed Law Wants to Convert ‘Anti-Vaxer’ Into a Protected Class

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

1. An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

A recently proposed Ohio looks to significantly expand these exceptions by elevating “unvaccinated” to the equivalent of a class protected from discrimination.

The misleadingly named Medical Consumer Protection Act would prohibit an Ohio employer from discharging without just cause, refusing to hire, or otherwise discriminating against any person on the basis that the person has not been or will not be vaccinated because of a medical contraindication or for reasons of conscience, including religious beliefs. It would also create a private cause of action allowing an employee to file suit over violations and seek compensatory and punitive damages.

I had a roommate in college who was fond of telling me that my opinion was wrong. I would tell him, “My opinion is my opinion. It might be misinformed. You might disagree with it. But it can’t be wrong.” It’s Hyman’s Law of Opinions. Today, I decree the following amendment to Hyman’s Law:

* … except in the case of vaccinations. If you oppose vaccinating yourself or your children, your opinion is wrong, period (unless you have a bona fide medical condition or religious belief that prevents you from receiving said vaccinations). Otherwise there’s no reason not to vaccinate. If you don’t care about your own health, care about the health of all of those around you, and the public health risks and costs you are helping create.

And if you happen to be an anti-vaxer and take issue with Hyman’s First Law of Opinions (as amended), you’ve brought the measles back from extinction. Case closed.

So I give a big thumbs down to the Medical Consumer Protection Act. It’s both unnecessary (by protecting from employment discrimination those whom the law already protects) and wildly over broad (by also protecting those who are unvaccinated “for reasons of conscience”).

Thankfully, this poorly conceived piece of legislative policy will never become an actual law.

June 1, 2019June 29, 2023

When Job Applicants Lie: Implementing Policies to Protect Your Company

A recent study revealed that 85 percent of employers have caught applicants lying on their résumés or job applications.

The most common lies involve modifying dates of employment, falsifying credentials, training or degrees, inflating prior earnings, or hiding a criminal history.

Throughout the past several years, there have been several stories of prominent executives and CEOs, across many industries, whose careers were cut short for lying on their job applications or résumés.

What should human resources professionals do when they discover that an employee has lied on their job application or résumé? How can employers avoid liabilities stemming from application falsification? What are the legal consequences for employers?

Preemptive Measures

The first step employers should take to avoid potential pitfalls is to implement a clear and uniform policy about the consequences of providing false information on an application.

For example, a brief disclaimer can be included near the signature line of the employment application, in which the applicant affirms and agrees that providing false, misleading, or incomplete information on an application, in a résumé, or during the interview process is grounds for disqualification from employment or termination if hired. The disclaimer should also expressly waive any liability for the employer if the applicant is not hired or is terminated for providing false information.

More importantly, employers should be consistent in enforcing this policy. Consistency can protect the employer from legal liabilities — and countless headaches — down the road. To accomplish this, employers should document every applicant’s receipt of the policy.

If a background investigation reveals that an applicant or employee clearly lied on his or her application, the applicant should be rejected or the employee terminated immediately. If the employer only suspects a falsification, HR should engage in a fair and impartial investigation and document its findings. Depending on the results, disciplinary action should be taken.

When assessing an applicant’s background, employers should focus on convictions and not arrest records. Otherwise, applicants may be unfairly prejudiced in the hiring process based on unsupported criminal allegations.

Conducting Pre-Employment Background Checks

Recent federal and state laws have presented hiring professionals with new compliance challenges when conducting a background screening. For example, while there are no federal laws requiring home health agencies to conduct criminal background checks or disqualify applicants from employment based on the results, there are 41 states that require these agencies to conduct criminal background checks.

Those requirements in those 41 states vary widely, including when the background check must be completed, what sources of information must be checked, which positions require background checks, and which convictions, if any, result in disqualification from employment.

The benefits of conducting criminal background checks in the hiring process often outweigh these challenges, especially in fields — such as health care or government contracting — where a failure to conduct screenings can result in hefty consequences.

While many employers may prefer to use social media to research an applicant’s background, employers should exercise caution when using an applicant’s protected characteristics (like race, religion, age or gender) as a basis for refusing employment.

Understanding the legal landscape as it relates to information an employer may request of an applicant is also key. For example, some states have laws that prohibit employers from requesting an applicant’s social media username and password. Additionally, some states have legislation referred to as “Ban the Box,” which prohibits employers from asking about criminal history on a job application.

Unforeseen Benefits of a Consistent Policy

In most cases, implementing a strong application falsification policy can result in some unexpected positive benefits. For example, many states have laws prohibiting employers from revoking job offers based on the discovery of a misdemeanor or other types of conviction with no relevance to the applicant’s suitability for the position.

Nonetheless, even though the employer cannot revoke the offer because of the conviction itself, the employee’s misrepresentation about the existence of the conviction is grounds for revocation.

For example, in a Pennsylvania case, the plaintiff only disclosed two convictions — stalking and harassment — on his application. But a background investigation revealed that he had pleaded guilty to eight additional crimes, including public drunkenness, disorderly conduct and drug crimes.

The company revoked his offer. The district court determined that the company did not violate Pennsylvania’s criminal background check statute because the termination was not for the employees’ conviction, but his lie about it. Importantly, the district court relied heavily on the company’s implementation and communication of a consistent policy forbidding applicants from lying on their applications.

In a similar vein, companies faced with discriminatory failure to hire claims have successfully argued that the later discovery of falsified job applications is a complete defense against the claims. In other words, if the company would not have hired the employee had it known of the applicant’s lie, the applicant cannot later claim that he or she was not hired because of a protected characteristic.

Here too, courts look closely at the company’s fair, equitable and consistent enforcement of its application falsification policy to establish that the company’s decision was not motivated by discriminatory intent.

Another benefit of maintaining a strong background check policy is that it can absolve or limit the company of liabilities down the road if the employee is terminated. Oftentimes, in the course of litigation over wrongful termination or discrimination claims, exhaustive background checks into the plaintiff reveal criminal histories previously unknown.

While an employer may still be on the hook for some damages if the decision to terminate was indeed discriminatory, the Supreme Court has held that a reward of back pay can be cut off completely — and the plaintiff’s potential damages significantly limited — if the employee’s wrongdoing was so severe that the company would have terminated the employee in any event if it had been uncovered. As a result, employers can potentially limit their exposure to liability in later wrongful termination claims by consistently enforcing a no-tolerance policy for application falsification.

While not every application falsification results in a high-profile CEO or executive separation, the problem is common across industries. HR professionals should take care to review their company’s job application process with the help of legal counsel to implement a fair and equitable policy that is compliant with state and federal regulations and train interviewers and hiring professionals of what they can and cannot ask.

The fix can be quite easy, and the benefits are great.

May 31, 2019June 29, 2023

Some 2020 Election Views: Jan Berger on Single-Payer Health Care

Not surprisingly the future of the United States heath care system is already a huge topic of debate for next year’s presidential election.

Many of the 2020 Democratic nominees for president are supporting a single-payer or Medicare for All solution.

Since the United States has never had this type of health care, it’s helpful to sort out the myths from the facts, which is exactly what one woman did at an employer-centric health care conference recently.

Jan Berger, president and CEO of international health care consultancy Health Intelligence Partners, gave a presentation on single-payer health care at the Midwest Business Group on Health annual conference in May.

One of the first ideas Berger brought up is key. Every country in the world, including the United States, is having the same health care problems no matter what the financial model is being used, she said. These problems include rising costs and access issues. The only way the U.S. is different, she added, is that we’re the only country that has made health care “political warfare.” Also, in most other countries people don’t go bankrupt or homeless because of health care costs.

Meanwhile, Berger also debunked several myths about other countries’ single-payer systems. One key myth is that “health care is socialized medicine.” While some socialist countries do use a single-payer system, many non-Socialist countries do, too. Pulling the socialist card to dismiss the single-payer discussion is “a bullet people use to not discuss change,” Berger said.

Berger listed other misconceptions about single-payer health care:

Single-payer financial models are all the same. (None are the same.)
“Single-payer” applies to both the finance and delivery of health care. (Only four countries have fully integrated models.)
Single-payer means no cost to the consumer. (This is very rarely true. There are out-of-pocket costs in almost all countries that use single-payer.)
Single-payer means no focus on preventative care. (This is not true, Berger noted, giving the examples of Cuba, Costa Rica, Israel, Saudi Arabia and Australia.)
Single-payer dictates how doctors treat patients. (It doesn’t.)
Single-payer models destroy innovation. (Berger noted many examples of how this is not true. To name a few: The Netherlands, which has one of the most unique memory-care systems in the world; South Africa, with its automated pharmacy teller machine.)

“We don’t have to be somebody else, but we have to learn from somebody else,” Berger said.

One other idea that Berger mentioned was the need to know the definitions of key phrases if you’re going to have a conversation about the different health care proposals. For example, the difference between Medicare and the Medicare For All bills. While Medicare doesn’t cover vision or dental, the predominant Medicare for All Act in Congress covers a broader range of services, she said. While the word “Medicare” is used in this context, by definition Medicare for All does not mean the exact quality and coverage of Medicare expanded to each U.S. citizen.

It’s also necessary to understand the definition of universal health coverage, which the United States does not have even with the Affordable Care Act. The World Health Organization defines universal health coverage as “ensuring that all people have access to needed health services (including prevention, promotion, treatment, rehabilitation and palliation) of sufficient quality to be effective while also ensuring that the use of these services does not expose the user the financial hardship.” It continues, “People need to be protected from being pushed into poverty because of the cost of health care”— a milestone the U.S. has yet to reach.

None of this is to say health care should be one way over another. But if we’re debating on what health care system works best for the country, then relying on facts rather than myths for information is a good start.

It’s possible to admit that the current employer-based health care system is not doing well in certain regards. Almost 24 million Americans enrolled in employer health plans must spend a large share of their income on health care. High-deductible health plans have the power to impact low-wage workers in much more detrimental ways than they impact high-wage workers. Contributing to HSAs like some employers promote just isn’t possible for many low-income employees; in fact, Bruce Sherman, medical director at the National Alliance of Healthcare Purchaser Coalitions noted at this same MBGH conference that only 1 percent of low-income employees contribute to HSAs.

Whatever the solution is to problems within employer-sponsored plans currently are, it’s not something that has been solved yet. There are going to be plenty of suggestions from the candidates.

As the 2020 election nears, we’re likely to hear a lot of hyped and a lot of misleading “facts” about certain health system proposals, and I’d encourage you to look at the facts instead of falling too deeply into the “political warfare” of U.S. health care.

May 31, 2019June 3, 2019

Bully or Tough Boss? Here Are Some Guidelines to Define Leadership

The good news: Many companies invest in programs that support employee physical and mental health of their employees. They understand that flourishing human beings generally translate into happier and higher performing employees.

The bad news: Not all bosses have gotten the memo.

It’s bad enough that after having to dodge bullies in school; we still confront them even as adults. Even worse, the bully may be the person who’s supposed to be in charge of your mentorship and growth, yet it seems like they’re more interested in intimidation and threats.

So how do you know when your boss has crossed the line into being a bully, and what do you do when he or she has?

How to Spot a Bully at Work

Having cut my teeth at a Fortune 50 technology company, I’ve heard a lot of debate on whether a boss was tough or simply a bully. It can sometimes be hard to tell if a boss is pushing you to reach your limits or trying to push you off a cliff.

A boss that only wants to be liked and lets his or her team walk all over them is another kind of danger. But being assertive and demanding can go too far. Leadership is tricky; one must be aware of their own personality derailers, understand positive and impactful boundaries, and be able to inspire others to help drive lasting results, without being a bully.

The Workplace Bullying Institute defines bullying as “threats, humiliation, intimidation, work sabotage or verbal abuse.” In its 2017 report, they found that about 1 in 5 workers are bullied at work, and 61 percent of the bullies are bosses.

If you want to know if you’re being bullied, ask yourself how you feel. If you’re being pushed by a tough boss, you should still feel inspired and psychologically safe. If you feel nauseous at the thought of going to work, unable to sleep and stressed to the max, you might be being bullied.

Bullies come in a few varieties, some easier to spot than others.

The easiest one is the loud, abusive boss. They humiliate you in front of others. You’re the butt of their jokes. They curse at you. It feels like the playground and you’re being pushed in the dirt by the big kid.

There is also the boss who is a passive bully. They torment their targets with quiet but piercing techniques such as undermining their employees, dividing their team, gossiping and sometimes even creating lies. This one feels a little more like high school, whispering in the halls.

How to Handle a Bullying Boss

There is not a single or simple answer to how to manage a boss who believes the best way to develop employees is to give them tough love or build thick skin by being abusive, abrasive or explosive.

If you find yourself in this type of environment, let me start by saying it is not OK and it is not your fault. I understand how being in this type of situation can tear you apart emotionally and physically. Breaking you is what the bully wants to do.

The most important thing you must do is take care of yourself. Removing yourself from the situation is always an option.

Some may criticize me for suggesting you leave the bully boss situation, because it may look like you’re letting the bully win. But it is an option you have and sometimes this is the best option for you.

If you choose to take on the situation head on, here’s my advice:

Have a plan. Be thoughtful and deliberate about how you will show up, perform, communicate and get results.

Continue to perform. Bring others along on your journey and deliver results. The bully will have a hard time attacking you if others are involved and part of your work.

Document. Even the little things should go in a log. A bully often makes mistakes that will leave them vulnerable to being reported.

Be careful who you trust. You may find yourself in a situation where you are ganged up on because another person the bully attacks is looking for any break from the bad behavior and they actually side with the bully. It reduces their torment. It sounds crazy, but it happens.

Talk to someone. Many people think this is a sign of weakness but it is not. You might want to talk with someone outside your organization so you know it won’t get back to the bully.

Remember That Bullies Are Ultimately Pathetic

I have come across a few bullies in my career and they were miserable people. They talked about others all the time, bringing everyone around them down.

Their home lives were sad. They were often unhealthy. When they did smile, it was forced. They carried a lot of stress and it showed up in their work, relationships, family and community.

The one thing I remind myself of frequently is that bullies I have come across in my career have to live with themselves every day.

You can escape your bully, but they cannot escape themselves. In time you will rise above the situation and never look back and your bully has the pleasure of living in their hateful and unhealthy life. That is their punishment.

Most bullies lack confidence and feel powerful when others feel powerless. Bullies are often threatened by the person they are bullying. It sounds silly and it is, but it is often true. You must take care of yourself if you find yourself in a situation like this. This will impact how you show up for yourself, your coworkers, your team and, more important, your family and friends.

It’s never OK for someone to bully another person. If the bully is making it sound like it is to get the best results out of a person or toughen them up, feel free to call it out.

There is no place for an abusive boss, including verbal abuse. I believe strongly in accountability and I set a high bar — professionally and personally — for my peers, my team and myself. Please do the same for yourself.

May 30, 2019April 26, 2019

Stalker Costs Costco in Bulk

Dawn Suppo was a Costco Wholesale Corp. employee.

A customer approached Suppo and asked her personal questions, including where she lived. A few days later, the same customer asked Suppo more questions. In another instance, Suppo noticed that the customer was in a disguise, and watching her from behind an aisle.

Suppo complained to her supervisors, but to no avail. Suppo also asked for a closer parking spot in the Costco parking lot, which was denied. The customer encountered Suppo at least 20 more times over the next 13 months, in some instances attempting to touch Suppo, bumping his cart into her, and, in one instance, videotaping her. Suppo was forced to obtain a “no contact order” to restrain the customer.

The stalking forced Suppo to take family medical leave to avoid continued encounters with the customer. Eventually, Costco terminated Suppo because her unpaid medical leave had expired. Suppo filed a hostile work environment charge with the EEOC under Title VII. After an investigation, the EEOC filed a lawsuit against Costco on behalf of Suppo.

The case proceeded to a jury trial, and the jury ruled in favor of Suppo. On appeal, the U.S. Court of Appeals for the 7th Circuit held that the harassment Suppo faced was “severe and pervasive” under the law, given the significant amount of stalking that took place.

The court affirmed the jury’s conclusion that there was a basis for employer liability because the employer’s response to Suppo’s predicament was “unreasonably weak.” EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018).

IMPACT: Employers should be aware that a hostile work environment can be created by unreasonable behavior on the part of a company’s customers. In the case of stalking, employers should attempt to provide solutions to employees to avoid the stalking and cooperate with police where necessary.

Also in Legal Briefings: Public Sector Employers and Age Discrimination

May 30, 2019June 29, 2023

We’re Addicted to … Everything? How to Handle Digital Addictions in the Workplace

As the years go on, so too does the list of things to which people become addicted. Emerging front and center as a relatively new but common modern addiction — to which employers are having difficulty responding — is the concept of a digital addiction.

A digital addiction is more than a mindless but incessant checking of one’s phone, more than browsing Facebook while taking a break from company-focused work. It is a complete disruption to and dysregulation of the daily life of an individual, due to compulsions to engage in the addictive and cyclical behaviors.

Digital Addictions and Treatment

Like other addictions, a digital addiction essentially renders an “addict” unable to perform a major life activity, such as sleeping, eating or working. As with other addictions, a digital addiction often arises out of feelings of discontent, stress, pressure, anxiety, depression or other underlying mental health condition. Although the behaviors themselves (use of electronic devices) may seem more benign than drugs, alcohol or sex, the personal impact is no less severe.

And perhaps even more concerning is the fact that digital addictions can be hard to spot and even harder to stop. We live in a day and age that virtually necessitates constant and unwavering digital and electronic connection. Behaviors that may be dangerous for a minority of the population with a digital addiction are entirely socially acceptable for the majority of individuals, rendering the line between an addiction and a habit blurrier than ever.

As the prevalence and understanding of digital addictions rises, so too does an understanding of the disorder and its treatment. Although this addiction is not yet recognized in the Diagnostic and Statistical Manual of Mental Disorders, or the DSM-5, treatment programs are seeing the growing need for programs specifically tailored to digital and gaming addictions. Additionally, organizations worldwide have begun conducting investigations and research into the impact of a digital addiction upon both the quality and productivity of life.

What Does This Mean for Employers?

In recent years, employers have come to understand their obligations related to mental health issues and disabilities — employees are to be granted reasonable accommodations for mental health disorders the same as they would be for a physical disorder or illness. This includes, when applicable, leave to attend treatment on an inpatient, partial hospitalization, intensive outpatient or outpatient basis under federal laws like the Family Medical Leave Act or Americans with Disabilities Act, as well as state laws, like the California Family Rights Act and California’s Fair Employment and Housing Act. What then is an employer’s obligation if an employee exhibits a digital addiction?

It is prudent to accommodate an individual with a digital addiction the same way you would accommodate any other individual: engage in the interactive process and review and discuss any restrictions, limitations or accommodations that may be needed. While there may be concerns regarding an employee’s ability to return to work in the digital age after receiving treatment for a directly related addiction, this concern cannot be used as a basis to engage in an adverse action against an employee.

This remains the case even if the disorder is not officially “diagnosable.” In other words, an employer must take a digital addiction seriously, even if it does not understand the addiction or personally believe the addiction is legitimate.

Where Do We Go From Here?

For now, there are several best practices employers can use concerning digital addictions. An up-to-date compliant handbook with policies addressing leaves and accommodations goes a long way. A handbook creates the foundation for your policies and procedures. If your handbook is wrong, or if you do not have a handbook at all, your internal policies and procedures are much more likely to be problematic and subject to tougher scrutiny.

Your handbook also needs to be acknowledged by your employees. You can use an employee’s acknowledgement to show they were well aware you were more than willing to reasonably accommodate them and welcomed any and all accommodation requests.

Documentation. Document notice of an employee’s alleged disability; meetings and communications discussing the alleged disability; and requested, offered or denied accommodations. Without documentation of this interactive process, it may as well have never happened.

Train your managers and supervisors. They can make or break your defense. They typically receive notice of an alleged disability or requested accommodation first. If they fail to take this seriously and begin the interactive process, your defense can be severely undermined. They need to know what constitutes “notice,” that the company has interactive process obligations and how to handle accommodation requests.

Do not be too quick in denying accommodations. The law requires that you participate in a “good faith” interactive process, which means considering each and every possible reasonable accommodation in “good faith.” Document any legitimate reasons why an accommodation may not be “reasonable,” but understand that not everything is “unreasonable.” While employers do not have to provide accommodations that are unduly burdensome, “undue burden” is an extremely tough standard to meet and is looked at primarily in financial terms by courts.

Finally, stay up-to-date on changes in the law concerning digital addictions. A critical part of avoiding future claims is being aware of your ever-changing legal obligations.

May 29, 2019June 29, 2023

Does the Attorney-Client Privilege Protect Harassment Probes Conducted By a Lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her.

The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

Who wins that fight? Does the court compel you to disclose the report, or does it protect it from disclosure as privileged?

In Barbini v. First Niagara Bank, a federal court recently addressed this very issue. It concluded that the lawyer’s investigatory report is not privileged and ordered its disclosure.

1. Not legal advice. Not all communications between lawyer are client are privileged communications. The attorney-client privilege protects communications that are primarily or predominantly of legal in nature, the interpretation and application of legal principles to guide future conduct or to assess past conduct. It does not, however, protect communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles. When a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer the company’s lawyer, but a fact witness as to what occurred.
  (Sidebar: the lawyer/investigator will also have a conflict of interest precluding him or her from representing the company in the litigation, so don’t retain your litigation counsel to conduct the investigation unless you are prepared to find new litigation counsel for that case.)
2. Waiver. If the employer wants to be able to rely upon the investigation at all as part of its defense to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action. It might be asserting a Faragher/Ellerth affirmative defense, or advice of counsel affirmative defense (as was the case in Barbini). In any of those instances, privilege will have to be waived, and the investigatory report, along with all of its related documents, will have to be produced.

As an employer, you should want to rely on your harassment investigation to prove the reasonableness of your response to the complaint. If you are trying to keep the investigation from the plaintiff-employee, in my mind it only begs the question of what skeletons you are trying to hide.

And, in this case, you are probably better off settling the case than digging in your heels and fighting a privilege fight you shouldn’t really be fighting in the first place.

May 29, 2019June 29, 2023

Collaboration Tools Are Great for Communication — Provided They Are Properly Implemented

Organizations around the globe are communicating with employees through digital tools to improve engagement and retention, increase productivity and more.

Connected workforces improve time-to-innovation by 31 percent, according to a McKinsey report. Digitally connected employees are 51 percent more likely to have strong job satisfaction and 43 percent more likely to have a positive view of work-life balance compared to workers who lack these tools, according to a recent study.

A growing number of organizations are adopting collaboration platforms such as Workplace by Facebook, Yammer and Microsoft Teams to break down silos, create a more vibrant culture, and foster a community of real-time teamwork. For instance, Workplace by Facebook provides a user experience similar to the company’s popular social media tools, enabling organizations to engage employees in a variety of ways, from live leadership broadcasts and news updates to polls and sentiment surveys.

Yet many organizations lag behind in implementing these tools. Because of their positive impacts on innovation and connectivity, use of digital collaboration platforms often pop up in pockets of organizations as employees seek more efficient ways to work. This unsanctioned shadow IT often lacks the appropriate governance or compliance mechanisms, carrying with it a myriad of risks, such as insider threats or vulnerable data. The organization must then play catch-up to roll out collaboration in a more controlled way.

Given the impacts on employee engagement, HR leaders often play a major role in the adoption of collaboration tools. But it’s important to look before you leap. Human behavior risk can proliferate without the right controls. The informal communication that speeds innovation can also cross the line into sexual harassment, discrimination and bullying. It’s essential to provide safeguards that ensure employees behave appropriately within these digital platforms to protect the company culture.

Others will share these concerns:

Cybersecurity will need to understand any new types of threats collaboration brings into the technology landscape. While enterprise-grade collaboration platforms are highly secure from outside attacks, it is essential to mitigate potential insider threats. Whether accidental or malicious, the chatty environment of collaboration tools can cause an employee to divulge sensitive or confidential information to the wrong people.
Compliance will have questions regarding data privacy regulations such as HIPAA and the European Union’s General Data Protection Regulation, or GDPR, which went into effect in 2018. In industries such as healthcare and financial services, it is essential to have a process to enforce data removal and retention policies. Compliance will also want to know what measures will be in place to ensure employees adhere to the organization’s policies and guidelines for appropriate behavior, including in closed or secret groups.
Legal will have be concerned with addressing legal hold situations and efficiently completing eDiscovery processes and internal forensics investigations. Unlike email, collaboration tools offer revision or deletion functionalities on messages and shared content. This can create liability and compliance concerns. As a result, legal may require access to an archive of all public and private content relevant to pending litigation – including revisions and deletions.

To address these stakeholder concerns, organizations need an effective community management strategy when rolling out digital collaboration. This strategy will define what endorsed behavior looks like, along with a response plan for unsanctioned or distracting behavior. It will also detail how the community manager will monitor the digital community and reinforce the desired behaviors.

Community managers should introduce accompanying solutions that satisfy stakeholder needs. This will keep unexpected incidents or requirements from threatening digital workplace rollouts. These include:

A well-configured monitoring tool that scans public and private conversation areas. This solution will automate the day-to-day work of digital community management, providing real-time alerts as issues arise. Real-time surfacing of concerning content—whether an HR violation or a sensitive data share—is critical to reinforcing desired collaboration behaviors.
A searchable archive that serves as a protection against legal action. Introduce a practice of storing authored messages and posts, as well as corresponding context—including revisions and deletions. Legal teams can then efficiently search and extract relevant conversation data for litigation scenarios.
A data management solution that enforces retention policies, satisfies user data removal requests outlined by the GDPR as well as supports the need to manage legal holds. Organizations own the conversation data that is generated by workers. It is critical to have a way to purge, protect and extract as needed.

By staying mindful of stakeholder needs, champions of collaboration will address the risks and requirements that can derail organization’s collaboration rollout. By identifying and addressing these issues before employees start using the platform, community managers can ensure a positive user experience and digital workplace sponsorship across the organization’s leadership.

May 28, 2019June 29, 2023

What Does a Valid Jury Waiver Look Like?

Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act.

It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I’ve previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

What does a jury waiver look like, and in what circumstances do courts enforce them? A recent Ohio appellate decision provides the answer.

In Kane v. Inpatient Med. Servs., the employer required its employees, as a condition of employment, to sign an employment agreement that contained the following jury trial waiver.

Waiver of Jury trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

In her sex discrimination lawsuit, Kate Kane argued that her discrimination claims should have been tried by a jury because the jury trial waiver did not expressly mention discrimination claims within its umbrella of coverage. The appellate court disagreed.

Undoubtedly, the waiver provision is broad. It encompasses “any litigation directly or indirectly arising out of or relating to this agreement and any of the agreements delivered in connection herewith or the transactions contemplated hereby or thereby.” This Court must conclude that Ms. Kane’s claims alleging discriminatory termination at the very least indirectly arise out of or relate to Ms. Kane’s employment agreement.

She also argued that the jury trial waiver as a whole was invalid, as she did not she did not voluntarily, knowingly and intelligently waive her right to a jury trial. Again, the appellate court disagreed, noting that courts apply the following five factors to determine if a “jury waiver was was entered into knowingly, voluntarily, and intelligently.”

The conspicuousness of the provision of the contract;
The level of sophistication and experience of the parties entering into the contract;
The opportunity to negotiate terms of the contract;
The relative bargaining power of each party; and
Whether the waiving party was represented by counsel.

In this case, the court concluded that the five factors merited the enforcement of the jury waiver.

We note that while the provision appears towards the end of the agreement, the provision is nonetheless conspicuous as it appears in all capital letters while most of the agreement does not. Ms. Kane has not argued she was unaware that the provision was in the agreement. Ms. Kane is a college-educated professional with experience negotiating contracts. In fact, there was evidence that Ms. Kane negotiated a higher salary prior to accepting an offer of employment. There was no evidence presented that would indicate Ms. Kane did not have a meaningful choice with respect to the waiver. And while the record does not indicate whether Ms. Kane was represented by counsel at the time she was offered a job, the employment agreement does contains a clause indicating that Ms. Kane “had the opportunity for th[e] Agreement to be reviewed by counsel[.]” Ms. Kane’s mere assertions that she did not understand she would be waiving her right to a jury trial for these claims is insufficient under the circumstances to demonstrate that the waiver was not entered into voluntarily, knowingly, and intelligently. We cannot say that the waiver is unduly complicated or confusing such that someone of Ms. Kane’s background would not have understood the scope of the right she was waiving.

Thus, if you seek for employees to contractually waiver their right to a jury trial, you should ensure:

The waiver is in writing.
It is clearly and conspicuously delineated within an agreement, such that employee is not likely to miss it upon reading the contract.
It is written in language for which it is reasonable for the employee to understand.
The possibility of negotiation of any terms of the employment agreement is at least a possibility.
If offers the opportunity for the employee to have their own counsel review it before the employee signs.

And, while it’s tempting merely to ape the language used in Kane, you should really have your own employment counsel review a jury waiver before you implement it in your own employment agreements.

I love the Kane case, because it gives employers something to think about other than, “Everyone else loves arbitration agreements, so we do too.” After careful deliberation, you might decide that arbitration agreements are the correct answer for your employees and your business. Before making that decision, however, consider the risks, benefits and alternatives. You might just decide that jury waiver is the right solution.