Rick Bell – Page 64

November 27, 2017June 29, 2023

Timing is Everything When Defending a Retaliation Claim

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on Jan. 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on Jan. 19, and was scheduled to return to work on Jan. 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

In ruling, the court relied heavily on the close temporal proximity between Valle’s FMLA leave and her termination.

Plaintiff’s allegations establish a close temporal proximity demonstrating a causal link between the protected activity and the adverse employment action. Plaintiff requested FMLA leave on January 14, 2016. Shortly thereafter, defendants approved plaintiff’s FMLA leave. Plaintiff began her FMLA leave sometime around January 19, 2017, and was scheduled to return on January 29, 2016. Defendants terminated plaintiff’s employment on January 27, 2016, two days before she was scheduled to return. Thus, we find that this adverse employment action, which occurred eight days after plaintiff’s FMLA leave period began, is unusually suggestive of discrimination. …

Plaintiff claims that the “most telling” evidence in this case is that Defendant Steltz testified that the first time the alleged threats came to light was when plaintiff was out on approved FMLA leave.

If you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row. Employees who engage in protected activity aren’t bulletproof from termination.

But you better be sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Valle.

November 27, 2017June 29, 2023

Employers Should Consider a Prescription Drug Use Policy to Avoid Lawsuits

The issue of privacy has become a matter of paramount importance in modern life, particularly with regards to medical issues.

Health care professionals and their assistants are constrained from revealing a person’s medical history and treatment without the express permission of their patients. However, in the workplace, liability can attach to an employer if an employee causes an accident, and the issue of liability can be exacerbated if the employee was impaired by an undetected use or misuse of legal prescription drugs. It’s a good idea for employers in safety-sensitive industries to be proactively aware if their employees are using prescription medication that may physically and mentally impair them.

Unfortunately, there is no case directly on point with regards to an employer mandating disclosure of prescription drug use by its employees on the job. However, analogies can be drawn from the current cases related to drug testing in key states like California and New York.

Reviews appear to indicate that required disclosure of prescription drug use may be upheld if:

The employee is engaged in safety-sensitive duties.
The drug in question may impact the employee’s ability to engage in safety-sensitive duties adversely.
The disclosure is only related to on-the-job drug use.
The information required to be disclosed is treated by the employer with the utmost discretion in order to safeguard the employee’s privacy.

Employee Privacy Rights

Failure of the employee to disclose may be determined either through random or focused drug tests provided there is a reasonable suspicion for a test focusing on a single employee and the random test is truly random.

The employee’s privacy rights would then be addressed in the method and manner of testing, and the subsequent dissemination of the results by the employer while due process issues would be addressed by the wording of the drug testing policy to be distributed to employees before this protocol is put into place.

According to Loder v. City of Glendale, in California, current employees have a greater expectation of privacy than do job applicants. Further, that case and Hill v. National Collegiate Athletic Association demonstrated the employer’s right to drug test current employees is subject to a balancing test between the employee’s reasonable expectation of privacy as safeguarded in the U.S. and California constitutions and an employer’s legitimate interest in safety.

The Loder court invalidated an across-the-board testing protocol which applied to every employee regardless of their job descriptions or duties. The protocol required a clerk or a secretary to be drug tested in the same method or manner as a truck driver operating heavy machinery.

The Loder court went on to hold that an employer may implement suspicion-based testing without violating an employee’s right of privacy as provided in the California Constitution. In Kraslawski v. Upper Deck Co., testing based on the reasonable suspicion of drug or alcohol use necessarily requires a showing of specific objective facts and rational inferences supporting the conclusion that an employee is under the influence of intoxicants.

However, the testing protocol must take into account the safety implications of the employee’s position with the company. In the case of Smith v. Fresno Irrigation District, the court upheld the termination of a construction and maintenance worker for failing a random drug test on the grounds that the worker’s position was safety sensitive and that his expectations of privacy were outweighed by his employer’s legitimate and substantial safety-related reasons for random drug testing.

Specifically, the court noted that the policy of the district was narrowly tailored to apply to employees in safety-sensitive positions. The defendant employed a computerized random number generator to determine which employee would be tested and on what date the testing would occur. The policy called for an average of two tests per classified employee each calendar year. The policy defined “safety-sensitive positions” as those which “as a normal course of business require the employee to operate district vehicles or heavy equipment or those positions in which the employee’s performance, reflexes and/or judgment impact the safety of others.”

After reviewing the balancing of the plaintiff’s reasonable expectation of privacy with the district’s interest in reducing the incidence of serious harm to its employees, the court found that the use of the drug tests by the district was legitimate. The court noted that an employer need not wait for an accident to occur prior to instituting policies which address their safety concerns. The court also found that the plaintiff’s expectation of privacy was diminished by the fact that the district gave its employees six months’ notice before it implemented its drug testing policy.

Classification of Safety-Sensitive Positions

However, simply citing the program as safety-related does not relieve the employer of addressing the very real privacy concerns. For example, in the matter of Luck v. Southern Pacific Transportation Co., a computer programmer working for the Southern Pacific Transportation Co. refused to submit a urine sample as part of an unannounced drug test by her employer. She was terminated. The court upheld a verdict awarding her damages for wrongful termination noting that the mere fact that she worked for an employer that is safety-sensitive does not make her position a safety-sensitive position.

The Luck court also distinguished between unsupervised employees who work in the field and employees like the plaintiff who work in a traditional office environment where drug use may be more easily detected.

Moreover, even if the employee is firmly within the classification of safety-sensitive position, the privacy rights of the employee become far more pronounced when the testing is to be conducted off duty. The court in the case of Edgerton v. State Personnel Board found that off-duty follow-up drug testing of California Department of Transportation employees violated the employee’s privacy interests under the California Constitution.

In 1989, the U.S. Supreme Court in the case of Skinner v. Ry Executives Ass’n determined that, while the 4^th Amendment prohibition against unreasonable searches and seizures is applicable to employment drug and alcohol testing, it is overcome by “the legitimate interest in preventing accidents and casualties in railroad operations that result from the impairment of employees.”

Similarly, New York courts found that pre- and current employment drug testing was warranted for subway conductors (Dozier v. New York City) and security guards (Jennings v. Leon), while an Illinois court upheld the compelled drug testing of a police officer as Constitutional (Hillard v. Bagnola). In all of these cases, the courts emphasized that the nature of the employment as safety-sensitive supported the need to test those employees periodically for drug and/or alcohol abuse on the job.

The takeaway from these authorities is that random drug tests must narrowly focus on employees engaged in safety-sensitive behavior. The Luck and Loder cases make clear that simply working in an office setting of a safety-oriented employer does not justify random drug testing of that employee.

That said, if the employee is engaged in safety-sensitive behavior, the expectation of privacy of that employee is reduced. This is particularly true if the protocol has been disseminated to the employees beforehand and they have a reasonable expectation that while they are on the job they may be subject to random testing. However, to the extent that testing occurs off duty, the balancing between privacy and legitimate concerns swings the other way toward the employee, as in Edgerton. Finally, if the employer has legitimate suspicions of drug use on the job based upon objective factors, courts have generally upheld an individualized drug test provided the drug test is done in a means and manner that is respectful of the employee’s right of privacy and allows the employee an opportunity to contest the results should they prove to be positive for prohibited medications and drugs.

Disclosing Prescription Drug Use as Condition of Employment

As noted, none of these cases addressed whether or not an employee can be compelled as a condition of his or her employment to disclose the use of prescription medication to the employer. If we analogize, however, it appears likely that the court will uphold that requirement as to safety-sensitive employees only.

In other words, this protocol and policy cannot be adapted to office workers but rather, should be limited to those employees who are in safety-sensitive positions, often in the field, where they cannot be directly supervised by management. Second, given that often we are talking about prescribed medication that is entirely legal, there must be a sensitivity as to the levels that are detectable in these tests.

As noted by the Edgerton case, a drug test is a periscope into the private life of an employee. That fact may have implications as to the employee’s off-duty life. The only justification for a drug test on duty is to determine whether or not an employee is impaired on duty and to provide a deterrent to that employee and others who might abuse drugs and medication while on duty.

If a metabolite is so low that the drug it is associated with was necessarily taken at its maximum strength while an employee was off duty, consequences while the employee is on duty run the risk of violating the employee’s right to privacy.

Michelle MacDonald is an employment law attorney with Gray Duffy LLP, based in Encino, California. Allyson Welden is a post-bar law clerk in the firm’s Encino office and assisted in research for this article.

November 20, 2017June 29, 2023

Employees Who Allegedly Take an Employer’s Stuff Without Authorization Don’t Win Discrimination Cases but Might Win Defamation Cases

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System.

He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to roll into long-term disability and retirement.

Before leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM drive, one mouse and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

Needless to say, Atlantic Health cut short Shann’s retirement plans and terminated his employment. It also emailed one of its computer vendors to advise that it had “launched an internal investigation to determine if Atlantic Health employee Jason Shann has been operating a side business performing computer support while on Atlantic Health time clock.”

The court had little difficulty concluding that Shann’s disability played no role in the termination decision:

It should be no surprise that “the removal of [Atlantic Health] equipment and software from the facility without authorization” could precipitate Shann’s termination. Atlantic Health’s employment policies unequivocally state that behavior that warranting immediate termination is “theft, misappropriation, or unauthorized possession of property belonging to Atlantic Health System.” Here, Atlantic Health’s corporate investigator reviewed security video tapes from August 16, 2011. In these videos, Shann is seen “carrying what looked to [be] computer hardware on both occasions.” …

Additionally, Atlantic Health terminated Shann for “the removal of proprietary hard drives from his workstation’s computer without authorization.” At his workstation, Shann had a desktop computer containing three hard drives. On August 16, 2011, Shann removed two hard drives from the desktop computer by “pop[ping] the case off, unplug[ing] it, and tak[ing] [them] out.” Shann did not ask for authorization before removing the hard drives and taking them home. …

Lastly, Atlantic Health also terminated Shann for using an “unauthorized … third-party program” to “overwrit[e] … over 27,000 files from his workstation’s computer.” Notably, the record indicates that the third-party program was run on August 16, 2011.

As a result, Shann lost his disability discrimination, and FMLA interference and retaliation claim.

The employer, however, was not able to convince the court to dismiss Shann’s defamation claim resulting from the post-termination comments made to its computer vendor.

What lessons can we learn from this case?

Employers must tread very carefully when communicating personnel decisions, or the facts underlying them, to third parties. The employer really did not have a compelling need to disclose its beliefs about Shann’s wrongdoing. And I’m not sure it disclosed anything untruthful (at least as the facts are presented in the case). But the court was not necessarily convinced and held that issue over for trial.

In other words, be careful what you communicate about employees and their terminations. Sometimes (most times), less is very much more.

Come back tomorrow for a discussion of the other issue in this case — whether the employer failed to accommodate Shann’s tinnitus.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

November 16, 2017June 29, 2023

Work Stress and the ADA

I’ve been thinking a lot lately about stress, and the anxiety it can cause.

Stress-induced anxiety can cripple someone. According to the Anxiety and Depressions Association of America:

72 percent of people who have daily stress and anxiety say it interferes with their lives at least moderately.
40 percent experience persistent stress or excessive anxiety in their daily lives.
30 percent with daily stress have taken prescription medication to manage stress, nervousness, emotional problems, or lack of sleep.
28 percent have had an anxiety or panic attack.

What happens, however, when the thing inducing the stress and anxiety is the workplace itself? What are an employer’s obligations under the ADA to accommodate this mental health disorder?

Let’s start with the basics.

Under the ADA, the term “disability” means, among other definitions, that an individual has a physical or mental impairment that substantially limits one or more “major life activities.” One such major life activity that an impairment can substantially limit is one’s ability to work. In this context, however, work means something more than one’s current position or workplace. It means a significant restriction in one’s ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. It does not mean a substantial limitation in performing the unique aspects of a single specific job.

It is for this reason that almost all courts that have examined this issue have concluded that anxiety or other mental health issues caused by workplace stress are not ADA-covered disabilities that an employer must accommodate.

The most recent appellate pronouncement on this issue is from the 7th Circuit, in Carothers v. County of Cook, in which the plaintiff claimed that anxiety relating to an altercation with an inmate prevented her from working her job in the county juvenile detention center. The court disagreed that her job-related anxiety required the employer to make any accommodation:

Here, Carothers has presented evidence that her anxiety disorder prevents her from interacting with juvenile detainees at the JDC. However, interacting with juvenile detainees is a unique aspect of the single specific job of working as a hearing officer at a juvenile correctional center. There is no evidence that Carothers’ anxiety disorder would prevent her from engaging in any other line of occupation. Since the inability to interact with juvenile detainees does not restrict Carothers from performing either a class of jobs or a broad range of jobs, she has not established that she is disabled within the meaning of the ADA.

That said, suppose that either (a) the employee is restricted from performing a class or broad range of jobs; or (b) you want to offer accommodation to the employee even if not legally required to do so. What are you accommodation options? Let me suggest a few.

FMLA (if you are a covered employee and the employee is eligible)

Non-FMLA unpaid leave of absence

Referral to an employee assistance program to assist with stress management

Transfer to a less stressful position (if the employee is qualified and the position is available)

Modified work schedule (telecommuting if possible, revised work hours, more frequent breaks)

These are difficult issues without easy solutions, and I feel badly for any employee living with such debilitating stress and anxiety. That said, every employee isn’t always suited for every job and every workplace, and sympathy does not equate to legal obligation to act.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

November 15, 2017June 29, 2023

Despite Pay Hike, CHROs Still Trail Fellow C-Suite Execs’ Salaries

pay for performance, payroll, compensation

First the good news. Median pay for chief human resources officers at publicly traded companies in the United States rose in 2016 for all but top executives at the very largest companies, a possible reflection of HR’s more strategic standing of late, according to a new report.

Now the bad news: pay for CHROs remains far below total compensation for chief executives and other C-level executives, according to an HR executive pay report from Equilar released earlier this month and other data from the business analytics firm.

And a note to private company CHROs: Even though your pay rose last year as well, your counterparts at public companies continue to make over 10 times more than what you do, according to a separate September report from Chief Executive Group.

In 2016, median compensation rose between 5.7 percent and 9.2 percent for CHROs at public companies with up to $15 billion in annual revenue such as Newell Brands Inc., CBS Corp. and Monsanto Co., but fell 2.6 percent for CHROs at companies with revenue over $15 billion such as HP Inc., Walt Disney Co. and McKesson Corp., according to the report. It’s based on compensation data for 869 HR executives and 214 large U.S. based or publicly listed companies from Securities and Exchange Commission filings and other information.

Median CHRO pay at top U.S. public companies hit $1.7 million in 2016 compared to $1.6 million in 2015. Last year, CHROs at health care companies registered the highest compensation, at $2.2 million, and CHROs at utilities the lowest, at $1.4 million, according to the report.

“Organizations are starting to view their CHROs from a far more strategic perspective and see their senior HR leaders capable of taking on broader roles,” an executive from global search firm Allegis Partners stated in the report.

Those roles include taking over “adjacent” responsibilities such as communications, public relations, facilities and real estate, the Allegis official said in the report.

In 2016, Fiona Laird, executive vice president and chief HR and communications officer at Newell Brands Inc., was the country’s most highly compensated CHRO, with total pay of $7.9 million, including a base salary of $410,764 and close to $6.2 million in stock awards, according to separate Equilar data. Coming in a close second was Tracy Keogh, CHRO at Hewlett-Packard, with total compensation of close to $7 million, including $600,000 in salary and $5.7 million in stock awards and options.

Performance Pay Tops Salary at Biggest Companies

As is the case with the top two CHROs, the bigger the company, the more likely it is that the largest chunk of an HR executive’s compensation is paid as a performance incentive.

In 2016, performance-based awards accounted for 10.6 percent of total compensation for CHROs at companies with under $1 billion in revenue but 29 percent at companies with more than $15 billion. For all HR executives, metrics for performance-based awards were most often tied to shareholder return, earnings and return on capital. In addition to salary and performance pay, total compensation includes cash bonuses, stock and options.

Though CHROs’ median compensation increased, it didn’t keep pace with pay increases for CEOs. In 2016, the CEO-to-HR executive pay ratio at companies with revenue of $1 billion or more increased to 5 to 1 or more. The same ratio was 3.7 to 1 at companies with revenue under $1 billion.

Pay for public company CHROs remained lower than pay for other C-suite executives. CHROs’ median pay of $1.7 million fell below median pay of $11 million for CEOs, $3.9 million for chief financial officers and $2.6 million for general counsels, according to Equilar.

Even so, CHRO pay at top U.S. public companies far outweighs pay for top people management executives at the country’s private businesses. In 2016, total median compensation for private company CHROs was $142,000, a 16.4 percent increase from 2015, according to Chief Executive Group’s private company compensation report, published in September.

Despite the increase, private company CHROs have one thing in common with their public company counterparts. They make less than any other C-suite executive, and in some cases, substantially less.

Last year, private company CEOs’ median total compensation was $361,558, more than twice what CHROs made in the same period, according to Chief Executive Group. Last year, median pay at private companies was $234,000 for chief operating officers, $212,000 for chief financial officers, $202,000 for chief marketing officers and $172,000 for chief information officers.

Michelle V. Rafter is a Workforce contributing editor. Comment below or email editors@workforce.com.

November 14, 2017June 29, 2023

Curtailing Workplace Harassment … with a Robot?

artificial intelligence — Some experts say AI could be a key tool in the future to help catch inappropriate behavior in the workplace.

The skills that robots have in the workplace are increasing rapidly from building cars to working factory lines to transcribing lengthy documents.

But catching sexual harassment in the workplace? It offers some intrigue to legal experts.

And considering sexual assault allegations in corporate America continue to occur with startling regularity, those experts say artificial intelligence could be a key tool in the future to help catch inappropriate behavior in the workplace. They quickly add, however, that such technology must work in tandem with HR professionals who can monitor and understand the data.

Silicon Valley is looking at ways to change the culture that is enabling sexual harassment and poor treatment of women in the workplace. California employment and entertainment litigation lawyer Eve Wagner, a founding partner of Sauer & Wagner LLP, a boutique law firm in Los Angeles, wrote in an op-ed on Law360.com that women have been empowered by publicly telling their stories.

She notes this cultural shift being seen around the issue is good, but told Workforce in a separate interview that there has been “a resurgence” of allegations. Although companies are considering artificial intelligence, or AI, to solve the problem, there are several factors to look at before it can work successfully, she said.

“A lot of companies now are implementing [AI] monitoring software,” Wagner said, adding that the reasons could be numerous — checking an employees’ job satisfaction, productivity, behavioral issues and potential harassment and retaliation. “It’s a newer trend and has not been tested out nationally to see the scope because obviously this infringes on people’s feelings of privacy.”

It’s a hurdle that attorneys and employers must be most aware of, one that changes depending on each state’s privacy laws. In California, Wagner said the privacy laws are stricter and state mandates are in place to bar employers from getting employees’ social-media passwords and GPS locations without consent.

Theoretically, the Electronic Communications Privacy Act of 1986, which prevents the government from monitoring electronic communications of individuals and businesses without consent, could protect employees, but Wagner said that once employees sign employee handbooks, they generally give consent to employer monitoring. Although most workplaces don’t actively check employee communications, she said just knowing that companies have the option is an unsettling feeling for the employee.

“It can create a stressful, demoralizing environment, even if it turns out that it’s not legally an invasion of privacy,” Wagner said.

AI also brings into question the data it could uncover and what HR needs to do about it. Sheryl Simmons, chief human resources officer at Maestro Health, said the data AI uses to potentially find inappropriate behavior must be balanced with a person’s work. More importantly, she said companies must have best practices and analysis in place for how to use the data before relying on it. Determining its relevance and if its findings should be pursued is how it can help the HR field in a more efficient way, without throwing massive amounts of data to sort through.

“Smarter should always mean more strategic, and that is where AI is going to free up resources,” Simmons said, adding that she sees AI being helpful not only for catching sexual harassment but also in recruiting, benefits, onboarding and management.

AI expert and principal analyst Ray Wang is passionate about technological tools and how people use them. As the founder and chairman of Silicon Valley-based Constellation Research Inc., Wang works with companies to make technology better assist their business strategy and future success. He said AI’s aid in the workplace will show trends on communication and office culture comfort by recording data through technology’s natural language processing engines, which examine sentences and analyzes them for different types of patterns.

“As people start to pick up these patterns, you are learning culturally what are acceptable situations,” Wang said. “We are seeing these tools emerge as a way to help folks figure out what are normal types of communications.”

Wang said AI will yield false positive results at times, so the goal is to improve the precision of those false positives by looking at the patterns the data brings in and knowing when to use automation versus manual intervention. He is confident AI will be a major tool for compliance and regulatory requirements and will be a rising trend culturally and corporately.

Silicon Valley’s recent bouts with sexual assault allegations have tainted the tech hub’s image, and Wang said the area is being scrutinized because of it. Despite this, he sees many tech companies using AI tools to catch inappropriate behaviors that would otherwise go unnoticed.

“There are definitely abuses happening but there is a witch hunt going on in the Valley at the same time,” Wang said.

AI use will only grow in the workplace and outside of it, and attorneys agree that HR will need to be prepared on how to handle the data. Marko J. Mrkonich, an employment law attorney with Littler Mendelson in Minneapolis, said it is too soon to see case laws based on AI catching sexual harassment in the workplace.

Wagner added that such cases could make their way to federal courts, but both lawyers said the data does not necessarily catch physical harassment if it is only looking at electronic interaction in the office.

“Realistically, right now the most prevalent use of analytics is still in the recruiting and selection processes than it is in the workforce management process,” Mrkonich said. “There are all sorts of areas where data analytics have the potential to help drive better behavior and better decision-making.”

Ariel Parrella-Aureli is a former Workforce intern. Comment below or email editors@workforce.com.

November 13, 2017June 29, 2023

Bullying Continues to Be a Pervasive Threat in the Workplace

The Workplace Bullying Institute defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is threatening, humiliating, or intimidating, or work interference (sabotage) which prevents work from getting done, or verbal abuse.”

One published report stated that most of the time when bullying occurs in the workplace the bullies are attacking the employee who is the strongest asset of the company. A decade ago a study done by Judy Blando from University of Phoenix revealed showed that 75 percent of employees said they had been affected by workplace bullying. Ten years later another bullying study, this one by CareerBuilder surveying LGBT workers, indicated that four out of 10 lesbian, gay, bisexual and transgender workers report feeling bullied.

American businesses don’t understand the severity of workplace bullying, said Gary Namie, a social psychologist and director of the Workplace Bullying Institute.

“American business doesn’t see it as a negative when they testify against our proposed legislation. They basically say don’t interfere with our right to manage people as we need to,” Namie said. “Now what that says is they believe American employers believe abusive conduct is an essential part of organizational life, and it is, it’s pretty common.”

LGBT employees report some of the highest percentages when it comes to being bullied at work, the study noted. Two out of five LGBT employees report that they feel bullied at work. Some 56 percent of bullied LGBT workers report being bullied repeatedly.

Female employees are 66 percent of the targets when it comes to workplace bullying, according to the 2017 National Survey by the Workplace Bullying Institute.

Namie explained how workplace bullying training adds little value to preventing bullying.

“The way that the state agencies are handling the mandated training is basically an illustration or two of bullying, and all that’s doing is teaching people how to bully,” Namie said.

The way employees are trained on bullying and the punishment for such actions is not working, according to Namie. Bullying is allowed to thrive at work.

“The key to breaking bullying is reinforcement. The reinforcement that bullying gets, the positive reinforcement is what sustains it,” Namie said. “In other words change the bullying into trouble for the perpetrator instead of trouble for complainants. Complainants are petrified to complain because just like sexual harassment, there’s fear of retaliation.”

Namie continued to explain how workplace bullying can be solved and stopped, there just have to be laws put in place for it. Currently Tennessee, Utah and California are the only states with laws passed stating that workplace bullying is illegal, according to Labor and Employment Law Counsel. Considering just three states have regulations in place it follows that many workplaces don’t take bullying as a serious issue since most states do not have these laws.

Namie said that bullying has proven to be everywhere, even places that are supposed to be safe areas like the workplace.

There are solutions that employers can bring into their workplace. Enforcing policies is the main step.

“The full comprehensive solution is you have to have the policy, you educate, then you faithfully enforce it at all levels,” Namie said. “Then you integrate the values in the policy in your performance appraisal so that we can stop saying to people, such as professors and physicians, ‘I know he’s cruel but he’s brilliant.’ Cut out the brilliant, there are brilliant people who are also kind.”

Alexis Carpello is a Workforce intern. Comment below or email editors@workforce.com.

November 13, 2017June 29, 2023

How Do We Start to STOP Sexual Harassment?

Harvey Weinstein, Kevin Spacey, Louis CK, Mark Halperin, Bill O’Reilly, Roger Ailes … the list of men accused of sexual harassment and other sexual misconduct seems to know no end.

I very much hope that we have reached the beginning of a cultural watershed against sexual harassment in America. Which is undoubtedly a good thing, especially when you consider a recent Washington Post survey reporting that nearly one-third of women have received an unwanted sexual advance from a co-worker.

All of which begs the question … if sexual harassment is so prevalent in the American workplace, how do we start having a conversation about how to stop it?

Thankfully, the EEOC has some answers. Or at least the beginning of some answers.

Last year, the EEOC spearheaded a Select Task Force on the Study of Harassment in the Workplace, headed by Commissioners Chai Feldblum and (current acting EEOC Chair) Victoria Lipnic. That task force published an 88-page report [pdf] on harassment in the workplace. That report, in turn, generated Proposed Enforcement Guidance on Unlawful Workplace Harassment [pdf], the final publication of which is imminent, and could not be more timely.

The comprehensive draft report covers all aspects of workplace harassment law, but it’s its last seven pages—entitled, Promising Practices—that are of particular interest in light of the recent spate of harassment allegations.

It offers five core principles that have generally proven effective in preventing and addressing workplace harassment:

Committed and engaged leadership
Consistent and demonstrated accountability
Strong and comprehensive harassment policies
Trusted and accessible complaint procedures
Regular, interactive training tailored to the audience and the organization

What do these principles look like in the real world? Rather than offer my own thoughts, I’d like to quote those of Commissioner Feldblum, from her prepared written testimony presented during the EEOC’s June 2016 Public Meeting on Proposed Reboot of Harassment Prevention Efforts, in discussing two key components of any successful harassment prevention protocol:

First: actions to prevent harassment must start from the top. Leaders of an organization—private or non-profit, large or small—must communicate a sense of urgency about preventing workplace harassment. They must communicate this through words, policies and procedures that create a culture in which harassment is not tolerated.
But that is not enough. For workers to believe their leaders are authentic—that they mean what they say—there must be accountability.

This is what accountability looks like: If an individual has engaged in harassment, that individual is sanctioned in a manner proportionate to the harassing conduct. For managers and front-line supervisors, it means that such individuals are measured by how well they deal with reports or observations of harassment, including receiving accolades when they deal with such situations well. …

I will conclude with … our most audacious, recommendation: that EEOC explore the launch of an “It’s On Us” campaign for the workplace. …

It is a campaign that encourages every person to become an engaged bystander…. To succeed, such a campaign would need the active engagement of many societal actors—including, at a minimum, employers, employees, unions, advocacy groups and community leaders. What we propose is that EEOC be a catalyst in helping to launch such a campaign.

And it’s the last point that is perhaps the most important. It is on all of us, men and women, to stop workplace harassment. When you see something, say something. It’s no longer OK to ignore harassment, to say, “Oh, that’s just good ol’ Ted. Can’t keep his hands to himself.”

“Good ol’ Ted” is a sexual predator, who has no place working at your business if he can’t keep his hands, or his inappropriate comments, to himself. When all employees of both genders understand (and maybe not until all employees understand) each’s role as key cog in creating a workplace culture where it’s not only acceptable to complain, but it’s expected that one will complain, we can begin to create the workplace where unlawful harassment is a relic of history.

To put it differently, if you’re not stopping harassment, you’re complicit in it, and that must stop.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

November 10, 2017June 29, 2023

Benefits Round-Up: Domestic Abuse, Extra Vacation and Ingrained Health Attitudes

This month has been a rough month in the business news space, with sexual harassment in the spotlight and open enrollment stressing people out in both the individual and employer markets. I’m working on a separate post about open enrollment (feel free to contact me via email, twitter or the comment section below if you have valuable thoughts about open enrollment). Meanwhile, there are a lot of other things going on besides these big stories that are worth mentioning.

Domestic Abuse Victims and Paid Safe Time: A recent Time article gave me info on something I did not realize fell under the umbrella of paid time off: paid safe time for victims of domestic abuse, sexual assault, stalking and human trafficking survivors.

A few main ideas from this piece:

Certain states are stepping up to guarantee paid time off to victims so that they can meet with law enforcement, move away from an abuser, and arrange for other potentially life-saving services without having to worry about the state of their employment or loss of income.
Domestic violence can have a profound impact on victims, their job and their economic struggles. This is illustrated by the anecdotal lead in this article, which takes us through one woman’s four-year-long struggle with this problem. Also, there are statistics that back this up. According to the Centers for Disease Control and Prevention, victims of severe intimate partner violence lose about 8 million days of paid work each year.
More than half of workplaces don’t guarantee paid safe time. But this is partly because of the isolating nature of domestic abuse. Companies might not be aware of how these situations can impact employees unless they witness it directly.

Meanwhile, advocates see the national conversation surrounding Harvey Weinstein and similar allegations and think this could be a catalyst for national change, according to the article.

Vacations for Non-Smokers: A Japanese company is giving nonsmokers six more vacation days than smokers this year, according to a recent article. Apparently the motivation behind this policy is that nonsmokers complained they spent more hours working than smokers, so the company decided to give them more vacation time. The article reported that it was not motivated by the health/negative side effects of smoking, although when you use phrases like “standing around sucking on their death sticks” and “the company hopes [this policy] will encourage smokers to quit their filthy habit,” it’s hard not to believe that was part of the motivation.

This story is interesting to me because I have a complicated relationship with wellness incentives, especially when it comes to lifestyle choices. Oftentimes, the example people give for unhealthy lifestyle choices is smoking. It’s the easy, straightforward example because no one could possibly argue that they’re not aware of the negative side effects of smoking nowadays.

A few thoughts come to mind for “lifestyle” based decision like this one. First, what constitutes a smoker? Does that include somebody who only smokes socially every so often? Second, the domino effect argument comes to mind. If this move is being attributed to time loss and not something related to health or incentives, are there actions other than smoking that could warrant the same response? Consider social media use, time spent on bathroom breaks, etc. Third, if this is based on the time argument, wouldn’t it matter how much break time each employee is entitled to? If smokers are using legitimate break time, and smoking is how they choose to spend it, then giving them less vacation days than other people would be unjust.

Maybe it doesn’t make sense to think this much about the policies of a Japanese company, but I don’t think it’s too off-kilter to see potential for similar policies in the United States. Smokers and non-smokers are treated differently in the workplace. Will U.S. employers go beyond shifting costs of health care premiums and begin shifting earned vacation days? Is that ethical? Feel free to share your thoughts below.

Ingrained Health Attitudes: Don’t underestimate how much work it might take to incentivize an employee toward a certain health behavior. For example, while out at an Indian restaurant with some friends the other week, they began talking about getting sick and going to the doctor. One girl mentioned that her parents ingrained in her from a young age that she should get a physical every year, no matter how healthy she feels. Now, every August “schedule physical” is on her to-do list. Another friend hasn’t been to the doctor since before college because her parents taught her the exact opposite. They were generally healthy, so why go to the doctor? This friend always manages to forget to make that appointment because it’s never been an item of importance on her radar.

Certain attitudes toward health care are more ingrained than you think. It takes more than a push from your employer to motivate someone to reverse a habit or attitude they’ve had their whole lives.

“Using Incentives to Drive Employee Wellbeing,” a recent episode of Health Advocate’s “Ask the Expert” series, explored this topic. “Behavior change happens over a long period of time. If you really are going to expect employees to make changes, it needs to be reasonable for them to be able to make those changes,” said Iris Tarou, director of wellness program services with Health Advocate. She added that employers have to realize they may not see a change for three to five years.

Something else that’s important is giving employees choice in the type of program they pursue. “With longer programs and more choices, people feel like it’s something that’s more realistic. They’re beginning to see that they want to make changes and that they have the time,” said Tarou.

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.

November 9, 2017June 29, 2023

Employees Use InDays to Improve the World Around Them

On the third Friday of every month, a LinkedIn employee somewhere around the world may be telling young adults to call their parents or help pay for a wedding at city hall. Maybe they’re volunteering at their child’s school or with their favorite charity.

These Fridays are called InDays. Each month has a theme chosen by someone on the executive team, and employees have that day to focus on transforming themselves, their team, the company or the world with that theme in mind, said Nina McQueen, vice president of global benefits and employee experience at LinkedIn. Five people run the program globally for the 30 countries in which LinkedIn has offices, and 240 “culture champions” help manage it in individual locations.

“InDay is meant to have you catch your breath and focus on something that inspires you that you’re passionate about,” she said. “It fuels you for the next 30 days ahead.”

These themes create the essence of what it means to work at LinkedIn, she added, and they stay the same year to year. They include vision, reflection, environment, play, culture, relationships, wellness and learning. Employees, in groups of three or four, can either participate in an event on a LinkedIn campus or outside of it. They show their participation by posting on social media with the hashtag #LinkedInLife.

February’s InDay had the theme of “Community” and each employee received $25 with instructions to “pay it forward” through a random act of kindness. Employees went into their community to do what inspired them, McQueen said. One team in India pooled their money and bought lunch for the office’s janitorial staff, she added. Another team in London bought several prepaid Starbucks cards and hung outside with a sign saying, “Let us buy YOU a cup of coffee.”

“They take pictures, they come back, they tell their story,” McQueen said.

Family was the theme in November 2016, and it provided a unique spin on a well-known work practice.

“Rather than do ‘Bring Your Child to Work Day’ we do ‘Bring Your Parent to Work Day’ because we have quite a large millennial population and we understand that parents are still a huge resource for young people,” McQueen said. The CEO and head of HR also brought their parents.

Once an InDay ends, McQueen said, “We take visual accounts, participation counts, we look at social media and see how many posts we had and the different places it’s mentioned in social media.” A team then puts together a package for the executive staff on the following Tuesday’s executive meeting including photos and anecdotes of the activities LinkedIn employees accomplished around the world.

Setting days aside for specific purposes isn’t unique to LinkedIn.

“We’ve seen an uptick in companies taking time during the workday to promote self-care and self-improvement for employees,” said Richard A. Chaifetz, CEO of employee assistance program provider ComPsych. The Chicago-based EAP has received requests to host training sessions and workshops on topics such as legal, financial and caregiving matters. Other popular topics include stress, mindfulness and relationships, he added.

SunTrust Banks provides employees a fiscal health day every year for employees to get their finances in order, according to The New York Times. Entrepreneur recently listed the types of activities companies plan correlating to the seasons, including a summertime camping trip by a Salt Lake City marketing company.

“These practices are part of employers’ efforts to improve and enhance their culture,” Chaifetz said. “Which is especially important for attraction and retention of millennials, who value work-life balance and self-improvement.”

Andie Burjek is a Workforce associate editor. Comment below or email editors@workforce.com.