Amanda Abbood, an employee of the Texas Health & Human Service Commission, complained to her supervisor that a co-worker, Matt Otts, had subjected her to sexually offensive and unwelcome conduct, including comments about her figure, discussing his marital problems and describing âmovies on Netflix that have a highly sexual connotation.â When confronted, Otts admitted to the misconduct, but claimed he was just joking. Instead of firing Otts, the employer reprimanded him, counseled him, reassigned him to another unit and relocated his office away from Abbood.
Four months later, however, Abbood again complained about Otts, this time that he told her he wanted to âjump her bones.â This time, the employer immediately removed Otts from the building, placed him on emergency leave, and changed the office locks. After completing its investigation, the employer then fired Otts.
Abboodâs second complaint about Otts occurred the same day as she suffered her own workplace issue. She discovered a stray dog outside the office, and used the commissionâs computer database to try to locate the owner. The employer fired Abbood for the inappropriate use of its data system, in violation of its Computer Use Agreement and a Data Broker Computer Security Agreement.
Abbood, however, alleged that she was fired because of her complaints about Otts, and that the employer acted inappropriately by not firing Otts after the first harassment investigation. The 5th Circuit Court of Appeals, however, disagreed.
HHSC is not liable under Title VII if it took âprompt remedial actionâ once it knew of Ottsâs harassment. Abbood argues that Otts should have been fired when she first reported him in August 2016, and that HHSCâs response was ineffective because he harassed her again in December. But an employer âneed not impose the most severe punishmentâ on an offending employee, so long as the remedial action is âreasonably calculatedâ to end the harassment. And [t]o be reasonably calculated to end the harassment, an employerâs actions need not end the harassment instantly.â âThe test ⌠is not whether the harassment stopped but whether the action taken by the employer was reasonably calculated to end the harassment.â
Here, the record reflects that HHSC took prompt remedial action.⌠When ⌠Abbood complained a second time, Otts was immediately placed on emergency leave, the office locks were changed, and he was subsequently fired. These facts demonstrate that HHSC took prompt remedial action.
An employerâs obligation in responding to a harassment complaint is to investigate and, as the court points out, take âprompt remedial actionâ to reasonably ensure that the harassment stops. If it doesnât stop (as was the case here), then remedial action must become more severe (as the employee didnât get the message the first time).
For a first instance of harassment, however, while termination is a remedial option, is is not the only remedial option. As long as the employer acts reasonably and promptly under the circumstances, a court likely will not second-guess the employerâs handling and response.
https://workforce.com/news/the-evolving-role-of-a-chief-people-officerFollowing the early November announcement that McDonaldâs Chief Executive Officer Steve Easterbrook was fired after admitting to violating company policy by having a consensual relationship with an employee, Chief People Officer David Fairhurst resigned a day later.
While a company spokesman said Easterbrookâs firing and Fairhurstâs resignation are unrelated, experts contend that with such a drastic and sudden leadership change, itâs not uncommon for major shifts to occur in the C-suite.
âWhen the CEO leaves the company, it is very common for it to have a cascading effect. In some cases, other executives leave because they did not get the CEO job and therefore felt passed over. In other cases, they are not aligned with the new CEO and leave to pursue new opportunities,â said Dave Ramos, chief executive officer of consultancy Shiftpoints Inc., in an email. âEvery executive will now have to switch their personal loyalty to Chris Kempczinski, their new CEO, or consider departing. Some of the senior executives may struggle to make this switch.â
In order to rebuild trust, Ramos said Kempczinski and the executive team must âaddress these issues in a humble, transparent and credible way.â The fast-food giant also stated in a press release that the âleadership transition is unrelated to the companyâs operational or financial performance.â
Chicago-based McDonaldâs leadership shake-up also serves as an example of how the #MeToo movement put a spotlight on the behavior of those who are in a powerful position in the workplace. Ramos said that âEasterbrookâs firing should be a red alert warning to any other executives who are violating McDonaldâs no-dating policy.â
Rebecca Thornley-Gibson, a partner at law firm DMH Stallard, said that because of the amount of time colleagues spend together, it is common for personal relationships to occur. âMost of the time this wonât create issues and employers wonât interfere with the relationship,â Gibson said. âHowever, where there is a relationship that involves one of the individuals holding the balance of power in the workplace relationship, then conflict issues are more likely to arise.â
Gibson also said that when a relationship involves a party who is responsible for the otherâs evaluations, pay reviews or promotion opportunities, then there is danger of favoritism and perceived bias. A subordinate may also feel as though they canât say no to sexual advances from their superiors, which creates a risk of sexual harassment claims.
Relationships within the workplace arenât illegal, but some companies implement non-fraternization policies to prevent allegations of favoritism or lawsuits stemming from unwanted advances or sexual harassment. If the situation does occur, experts say that it is best to notify a human resources director.
âStopping relationships is not likely to be practical for employers but putting in place steps to minimize any fallout from the relationship should be considered,â said Gibson. âThis will involve having in place, and communicating workplace policies on conduct at work, equality and diversity policies with a clear zero tolerance toward sexual harassment and also requiring employees to declare relationships which are likely to result in a potential conflict.â
Fairhurst had worked alongside Easterbrook for McDonaldâs in the United Kingdom and was promoted to chief people officer soon after Easterbrook became CEO in 2015. No other details were provided as to why Fairhurst decided to step down when he did.
According to a Bloomberg article, Senior Vice President Mason Smoot was named as interim chief people officer.
Fairhurst announced his departure with a farewell post on LinkedIn that said although he was sad to be leaving, it was time for him to move on to his next career challenge.
Symphony Talentâs acquisition of SmashFly Technologies is being called one of the most significant HR technology deals of 2019. Industry observers note the combined company will serve an estimated 750 companies out of the gate, including a number of Fortune 500 and multinationals.
Symphony Talent announced the transaction Nov. 1, though it didnât disclose financial terms.
On the surface, the deal brings together two complementary offerings. Symphony Talent is known for its employer-branding and creative services, while SmashFly is regarded for its recruitment marketing and candidate relationship management tools.
In an interview with RecruitingDaily, Symphony Talent CEO Roopesh Nair said the combined company âcan really help practitioners create their strategy and accelerate their brand across touchpoints, across channels and audiences.â Among other things, he added, customers will benefit from âa more unified and consistent approachâ to talent acquisition.
Ben Slater, vice president of marketing for recruiting platform provider Beamery, said the deal underscored the importance of technology to todayâs talent acquisition strategies.
âItâs not enough to have career site and brand collateral. You need functionality for building and nurturing talent pipelines, managing events and campaigns,â he said. âIn short, you need a platform to do the heavy lifting once you have developed your employer brand strategy.â
Strategic or Tactical?
Nikki Edwards, principal research analyst at industry researcher NelsonHall, said the acquisition will strengthen Symphony Talentâs market position. Introducing SmashFlyâs technology into the companyâs mix will result in âa more complete service/tech offering,â she said.
âService providers are increasingly leveraging technology to deliver a better service, but those service providers are experts in their own field first ⌠and usually experts in technology second,â she observed. In a market crowded with companies offering sophisticated platforms and tools, âit makes business sense for service providers to partner with or acquire companies with the intellectual property they need.â
For Symphony Talent, making such a move is particularly important, said Chad Sowash, an industry consultant and co-host of the recruiting podcast âThe Chad & Cheese Podcast.â
In recent years, he explained, the company has struggled with a number of organizational, operational and marketing issues. Symphony Talent âhasnât done a great job when it comes to letting the market know who the hell they are,â he said. âSmashFly has done a better job.â
On a tactical level, Sowash thinks Symphony Talent acquired SmashFly with its eyes squarely fixed to compete with TMP Worldwide Advertising and Communications. Since January, TMP has purchased social media firm Carve, recruitment tech company Maximum, programmatic recruitment platform Perengo, and employer branding and recruitment marketing firm CKR Interactive. âSymphony had to do something and I think they had to wait to be able to do the right thing,â Sowash said.
In this case, the right thing was not just to acquire SmashFlyâs technology but also its customers, revenue and âthe engineers who are building SmashFly for the future.â
Having such expertise in-house will be critical to Symphony Talentâs success, Sowash said. However, that success is by no means assured.
âI think this is going to be the point where we either say, âThis is where Symphony Talent actually took off from the launch pad or it blew up on the launch pad,â â he said. âThis is all about execution. They have all of the tools, all the connections to be able to make this happen or to fail miserably.â
These are interesting times for a professional woman in her 30s.
For many, more than a decade has been invested in a career. Rungs on the ladder climbed, reputations established. Big responsibilities in tow … heck, some of us run departments, even companies!
And that is awesome â after all, the #futureisfemale. It is also the decade where women in big cities like New York and London most commonly start having children [1a] [1b].
Gender aside, it is my opinion that jobs get more rewarding with age. The more time you spend in the workforce, the more experiences you have.
In time (assuming these experiences are relevant), they will pave the way to enhanced responsibilities, usually coupled with better role titles, bigger teams to manage, and more generous compensation. Sure, the pressure is higher, but in the eyes of an emerging executive, the benefits of climbing the corporate ladder outweigh that burden.
But this poses an interesting challenge for professional women who want children.
Imagine this. After more than a decade of hard work, a woman in her mid-30s is breaking into leadership ranks. Established and credentialed in her field, she is scaling the corporate ladder â her eye on the prize, the next promotion in sight. But she knows she wants to birth children, and that window wonât stay open forever. So that is what she does, and while she will always cherish that decision, she wonders if it will hurt her career.
It shouldnât. But for some women it does, particularly when the right support is not in place. And this is my reason for this blog post.
I donât suppose to have all the answers â and as a mother of two currently on maternity leave, Iâm still working this out for myself. But I do have some thoughts. And, if my thoughts help even one more mother assimilate back to work when it suits her, then Iâll take it.
I took interest in this topic in 2015 when I discovered my first child was on her way. I was 32 and living with my husband in New York City. Eyeing up promotion and facing the most challenging client engagement of my career, the discovery of my pregnancy was both thrilling and terrifying.
Among the excitement were the moments when I realised the âwork hard, play hardâ mentality that served me through my 20s was no longer an option. After all, a pregnant woman needs her sleep. The realisation was perplexing â I needed to reframe my attitude toward work and its role in my life, and I didnât know where to start.
Iâve made a lot of progress since then. Two babies later, I am often asked how to juggle life as both a mother and a professional. Itâs the impossible question as there is no simple, let alone right answer. Alas, I attempt:
It takes a village.This African proverb is profound. For me, that village is my husband, nanny, in-laws and sister. Put simply, I could not do my job without them. A working mother must identify her villagers â they must be strong and reliable, trusted to look after the most precious of possessions. They must be thanked and appreciated, for this group is the most important coalition for a working motherâs success.
Weâre in this together. There are many allies to working mothers â both men and women. But other moms in particular truly get it. We must support one another. A colleague told me she thought of asking me for a change of clothes since her baby ruined her outfit in transit to an important meeting. I wish sheâd have asked â Iâd have moved mountains to help. Another colleague jumped on a plane to cover for me at a momentâs notice when I was too pregnant to travel across the U.S. for a meeting. Her words when I thanked her: âWe must help each other out.â I knew exactly what she meant.
Find a supportive employer. I am lucky since my firm is consistently ranked a top company for working mothers [2]. A firm that takes diversity and inclusion seriously is more likely to support a working motherâs integration than one that does not. Look for flexible work policies and family friendly benefits, as well as a leadership culture that promotes wellness and work life balance.
Divide domestic duties. As articulated by Annabel Crabb in her quarterly essay on Men At Work [3], many working mothers continue to take on the lionâs share of domestic duties in the home. In fact, research from Manchester University and the Institute for Social and Economic Research at Essex University in the U.K. has shown that working mothers with two kids score consistently higher on chronic stress indicators, such as blood pressure and hormones, as compared to the general population [4]. In order to transition back to work in a way that is sustainable and healthy, we need to see more balance in the way domestic duties are divided between family members in the home.
Set boundaries and get to work. Working mothers are expert multi-taskers, whether itâs fixing the kidsâ breakfast while taking a conference call or squeezing in a doctorâs appointment between meetings, one thing is for certain and that is that working mothers have very little time. This means that what time we do have reserved for work must be used wisely. For me this has meant less procrastination. If something needs to be done, it needs to be tackled fast. It also means that there is only time for the critical items. As a fellow working mother once coached me, âYou can drop the rubber balls but not the crystal one.â Identifying what really matters at work is important, and de-prioritizing the rest is a necessary action for a working mother (even if it doesnât feel natural).
This article might feel stereotypical to some. Of course, there are women who do not want children, and there are fathers who are primary caretakers. And, obviously, women give birth to or adopt children at all ages, not just in their 30s. Iâm not ignorant to that. Take my thoughts for what they are worth. As one working mother to another (or, the partner, child or colleague of a working mother), I hope these thoughts help our working mothers transition back to work with grace. After all, weâre all in this together.
P.S., This post is dedicated to my own working mother, Dr. Cathy Allen, and inspiring friends: Liz Kreuger, Caroline Gatenby, Courtney Nolan, Joanna Bates, Sarah McGrath, Emma Fletcher and Dr. Patricia Davidson. Also, the countless working mothers at PwC who inspire me every day â there are too many to name, but they know who they are.
Earlier this year I wrote about the first-ever ISO standards for human capital reporting, which were published in December.
These called for the voluntary public disclosure of measures for both large organizations and small/medium-sized organizations. While some European and Asian governments are likely to adopt the ISO recommendations as law, the United States Congress was never likely to follow suit, so it appeared that adoption in the U.S. would be voluntary and slow.
The U.S. Securities and Exchange Commission just published proposed rulemaking, which, if implemented, will bring human capital disclosure to U.S publicly traded companies much sooner than anyone imagined. This is a game changer for our profession and a VERY BIG DEAL!
On August 8 the SEC proposed to fundamentally change the way publicly traded companies report. Under the current rules, the SEC specifies 12 items that must be included in the narrative description that accompanies financial statements. Companies have to address all that apply to them. For example, these items include a discussion of the principle products and services offered, new products and segments, sources and availability of raw materials, whether the business is seasonal, competitive conditions and the current backlog of firm orders. The last required item is the number of employees, which is the only human capital measure currently required for disclosure.
The SEC proposes to move away from an explicit list of required items and instead adopt a principles-based approach where each company must discuss whatever is material with the understanding that the list of topics will differ by industry and company. (In financial reporting, material means any information that would be important to an investor in deciding whether to buy or sell a security.) The SEC does, however, share a nonexclusive list of items that it believes will apply to most companies. This list includes five items from the current list of 12 and two new items: human capital and compliance with government regulations. (The other five items are revenue-generating activities, development efforts for new products, resources material to the business, any business subject to renegotiation or cancellation, and seasonality.)
Furthermore, simply disclosing the number of employees will not satisfy the need for human capital disclosure.
In their own words, âItem 101(c) (1) (xii) [the current rules] dates back to a time when companies relied significantly on plant, property, and equipment to drive value. At that time, a prescriptive requirement to disclose the number of employees may have been an effective means to elicit information material to an investment decision. Today, intangible assets represent an essential resource for many companies. Because human capital may represent an important resource and driver of performance for certain companies, and as part of our efforts to modernize disclosure, we propose to amend Item 101 (c) to refocus registrantâs human capital resources disclosures. Specifically, we propose replacing the current requirement to disclose the number of employees with a requirement to disclose a description of the registrantâs human capital resources, including in such description any human capital measures or objectives that management focuses on in managing the business.â (Page 48 of the proposed rule Modernization of Regulation S-K Items 101, 103 and 105.)
Did you just feel the earth shifting below your feet? You should have. The importance of this proposed rule for our profession simply cannot be overstated. Many in the profession have worked years to increase the visibility and use of human capital measures. The time finally may have come for it in the U.S.
While it is true that the SEC will not prescribe specific human capital measures, it does provide some examples, including measures for attraction, development and retention of personnel. The test for disclosure, however, is clear: materiality. Can you imagine any CEO or CFO telling analysts, the public and their own employees that people are not a material contributor to the companyâs success, especially after saying for years that people are the companyâs greatest asset? I donât think so. So, if this rulemaking is finalized, human capital disclosure is coming and coming soon.
Most companies will rely on their heads of HR as well as accounting for guidance on what to include in their narrative on human capital. If for no other reason than risk mitigation, these leaders in turn will look to the human capital profession for guidance. And they will find ISO 30414:2018, the human capital reporting standards published in December 2018. These standards recommend the external reporting of 23 measures for large companies and 10 for small/medium. These measures will be a natural starting point as companies decide what to discuss, so if you donât yet have a copy, get one, and be prepared to proactively help your organization be a leader in human capital reporting.
The proposed SEC rule is available here. The rule is 116 pages, but the section on human capital is under section IIB7, pages 44-54.
This story originally appeared in Workforce‘s sister publication, Chief Learning Officer.
Richard Turner worked as a crane operator for Phillips 66.
The companyâs substance abuse policy allowed for random and post-accident drug testing for âCannabinoids, Cocaine, Opiates, Phencyclidine (PCP) and Amphetamines,â and mandated termination for any positive test.
On April 24, 2017, Turner was selected for a random drug test and provided a urine sample. Three days later he was involved in a workplace accident and was again tested.
The following day, Phillips 66 learned that Turnerâs April 24 sample tested positive for amphetamines. As a result, the company fired him.
According to a letter Turner later provided from his physician, Turner had not been prescribed amphetamines, but had taken over-the-counter medications, including Sudafed, for unspecified âmedical conditions.â The April 27 sample, and the sample from a retest Turner himself took, both tested negative. The companyâs retest of the April 24 sample, however, again tested positive for amphetamines.
In Turnerâs subsequent disability discrimination case challenging his termination, the 10th Circuit Court of Appeals concluded that Phillips 66 did not violate the ADA via its drug testing.
Under the ADA, an employer âshall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.â Turner argued that Phillips 66âs drug screen violated this rule because it revealed the potential use of a legally prescribed medication. The 10th Circuit disagreed:
The EEOC has indicated a drug test does not become a medical examination simply because âthe results reveal information about an individualâs medical condition beyond whether the individual is currently engaging in the illegal use of drugs,â such as âthe presence of a controlled substance that has been lawfully prescribed for a particular medical condition, this information is to be treated as a confidential medical record.â A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.
Pay careful attention to that last sentence:
A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.
Assume for a second that Turner tested positive for legally prescribed medical marijuana instead of amphetamines. Would this result be any different? Marijuana remains federally illegal. If an employer drug tests for marijuana, according to Turner v. Phillips 66, a positive test does not become an unlawful medical exam in violation of ADA merely because it could cause the employee to reveal medical information to justify the positive test.
In other words, drug tests remain 100 percent legal, whether or not they cause an employee to reveal medical information in response to the drug screen.
A great result for employers as we continue to figure out the difficult intersection between the lawful use of impairing drugs and the ADA.
James âRandyâ Williams worked as a department manager for Graphic Packaging. In late 2014 or early 2015, Williams told his supervisor, plant manager Eddie Lee, that he had been re-diagnosed with prostate cancer. In September 2015, Williams requested time off for treatment, which the company granted from Sept. 14 through Nov. 23, 2015. During that leave, however, several of Williamsâ subordinates lodged complaints against him of inappropriate treatment. The company investigated, and concluded that âWilliams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management.â As as a result, shortly after Williams returned to work, the company fired him.
Williams sued, claiming (among other things) that firing on the heels of a return to work after cancer treatment is tantamount to disability discrimination.
The 6th Circuit court of appeals disagreed.
The evidence demonstrates that Graphic Packaging terminated Williamsâs employment after receiving complaints from an employee, which were later corroborated by interviews with fellow employees, an internal investigation, and depositions from Graphic Packaging upper management, Human Resources employees, and employees who reported to Williams. The record reflects that Williams violated Graphic Packagingâs Core Values by mistreating employees both publicly and privately, limiting access to upper management, and propagating troubling and salacious rumors concerning upper management. Williams has even admitted that he committed at least some of the acts which so clearly violated Graphic Packagingâs Core Values.
No employee gets a free pass on workplace misconduct just because he or she suffers the misfortune of having cancer (or any other disability). The company concluded that the allegations against Williams (which its internal investigation corroborated, and many of which Williams himself admitted) merited termination. Those allegations included Williams telling his subordinates that he âownedâ them; spreading an unsubstantiated rumor that Lee had molested his own daughter; cheating on a mandatory safety exam; and forbidding his subordinates from speaking to plant management.
Cancer and other ADA-protected disabilities are not âget out of jail freeâ cards for workplace misconduct. Do your due diligence, and treat the employee the same as you would have treated him or her if the disability didnât exist. If the misconduct warrants termination, so be it. Terminate, and defend your legitimate, non-discriminatory decision. Otherwise, you risk setting a precedent that the misconduct is OK, which will make it that much more difficult to hold others accountable for that same misconduct in the future.
I recently received a story pitch with the subject line, âDo Baby Boomers Need to Go Under the Knife to Keep Their Edge at Work?â
Sure, roll your eyes. Scoff at a pitch with a pandering subject line that cries âOpen me!â like a pricey bottle of booze at a five-dollar white elephant holiday gift exchange. Crinkle your nose and sniff a haughty sniff at the thought of someone actually undergoing plastic surgery to keep an edge at work.
I donât think itâs a silly question at all.
But you do. Then again you look like an Olympian thanks to that Lagree ultimate strength workout in the corporate fitness center. If Adonis was your co-worker heâd stare slack-jawed at your chiseled body as you passed by in the company cafeteria with your meatless burger, bowl of elderberries and glass of oat milk.
Perfect hair, stylish glasses (not that you need them; itâs just accessorizing to make you look smarter), glowing skin (of course you use product, doesnât everybody?), and the shoes. Yes, itâs all about the shoes.
Youâre at the top of your game. You crush it daily.
Until, well ⌠until youâre getting ready for work one early spring morning and the bubbly yet acerbic TV personality on your go-to morning news program blurts out that your company has been acquired. The deal is just a passing mention following the always informative âMr. Fix-Itâ segment but the chill racing down your spine buries a big fat pit in your stomach. Your knees buckle and your cup of freshly brewed raspberry chai tea trembles like a swimming pool in an earthquake.
Your company was acquired by an out-of-state competitor. Youâre stunned. And youâre angered because you didnât hear about the multimillion-dollar acquisition from the CEO via a hastily called all-hands teleconference call, or a posting through the corporate intranet. Not even a terse, one-paragraph companywide email announcing the deal. No, it was a giggly morning news show delivering a body blow that radically alters your perfectly coiffed life.
Itâs been your corporate casa for nearly three decades, which makes sense given that its inviting, folksy motto is âItâs our business to make you feel at home!â Sure youâd bounced from job to job early in your career searching for the right fit. I mean, who hasnât? And after three decades on the job itâs OK to admit that youâve toyed with the thought of retiring â not immediately mind you. Thereâs still a lot left in the tank.
Your âhome,â however, has other ideas that donât take into account your distant fantasy of spending part of your golden years mountain biking across the Peruvian Andes. The mentoring of junior executives whom you suspected were already at your pay level despite being half your age has come to mean nothing. The weekends spent hitting near-impossible deadlines, all the sweat equity dripping from that slightly wrinkled brow onto your place of employment â wow, reality sure bites sometimes.
Within a month itâs clear your job is in peril. A week after regulators were pleased and stockholders were paid out you also are out ⌠out of a job. Because you know, as the new CEO proudly boasted on your go-to morning news show, âAfter any acquisition, there is a duplication of efforts, which results in some synergies, and unfortunately for a lot of people today, weâre realizing those synergies. These synergies will ultimately provide a better experience for the consumer.â
Well naturally. I mean, synergies.Â
So now you are just another older worker in the job market. Self-doubt creeps in as you realize after your third rejection notice that ageism is a cold, cynical, perpetual workplace cycle that many employers flaunt in their never-ending search for younger, cheaper labor.
Where once you dismissed studies that found more than half of full-time workers in their early 50s were at some point forced out of their job and then experienced long-term unemployment or a huge cut in pay for years after, you now see that you are its living embodiment.
Two months ago you were a highly respected senior VP of product development. Now youâre unemployed, trips to the gym are infrequent and toast with butter and jam has replaced elderberries.
Those kids you mentored, the ones you took under your wing, not to mention out for happy hour? They are the ones interviewing you now. They all look so young and vibrant. Youâll do most anything to get back in the game, because you still have a lot to offer!
And, well, a nip here or a shot of botox there is justified to level the playing field. Going under the knife? Given your lifeâs new realities itâs not so silly after all.
I once made the mistake of watching an episode of Orange is the New Black on an airplane.
The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.
Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workersâ choice of television shows in the break room created a hostile work environment.
The show at issue is “Luke Cage,” which included some brief nudity. At the plaintiffâs request (and a brief argument) her co-workers changed shows. This incident repeated again later that day, with the co-workers again changing shows at the plaintiffâs request. It was undisputed that the show in question contained two scenes with nudity, each lasting less than a minute.
Stephanie Sims reported the incident to management, which assured her that the break-room television would no longer be able to connect to steaming services. Management also counseled the offending employees on the employerâs respectful workplace policies and its prohibition against retaliation.
The district court had little difficulty dismissing Simsâ hostile work environment claim.
First, her exposure to two brief scenes of nudity on a television in the driversâ lounge cannot reasonably be perceived as hostile or abusive. ⌠Considering all of the circumstances in the light most favorable to Sims, ⌠she was simply not subject to severe or pervasive harassment.
And even if the brief incidents at issue here could somehow arise to objectively serious or pervasive harassment, Simsâs claim fails because there is no indication that she was subject to something to which male drivers were not exposed. The TV was on for all drivers, male and female, to see. The brief nude scenes were not directed at Sims because she was a female. Poor taste does not amount to prohibited sexual harassment.
And finally, ⌠a Title VII plaintiff must also establish that her employer failed to take prompt remedial action when informed of the allegedly harassing behavior. Sims cannot make this showing here. The evidence, in fact, demonstrates the opposite: to a person, Simsâs managers responded to her complaints, attempted to comfort her, and took immediate action.
One employeeâs television show is anotherâs harassment. And while this court almost certainly correctly concluded that a minute of nudity on a screen does not rise to the level of a hostile work environment, itâs nevertheless not a bad idea to take a stand against all nudity in the workplace so that you donât end up in court making these arguments.
COBRA benefits provide continued group health plan coverage after certain qualifying events, like termination of employment, and are a health care safety net for employees until benefits from a new job kick in.
But for employers, staying compliant with COBRA regulations can be difficult. Sure, COBRA â the Consolidated Omnibus Budget Reconciliation Act health insurance program that allows an eligible employee and their dependents the continued benefits of health insurance coverage â is for employees who no longer work at your company.
Since you might think of them as long gone, complying with COBRA might not be a priority. However, any employee who leaves on bad terms may be more likely to file a lawsuit against an organization if it mishandles COBRA. In fact, employers have recently seen an increase in the number of COBRA lawsuits filed against them for leaving out required information.
Outside of litigious former employees, COBRA is generally confusing to comply with and can carry heavy penalties for employers. These can add up â courts can assess up to a $110 per day penalty for each deficient COBRA notice per person.
Here are some commonly overlooked details.
Not understanding if your organization is subject to COBRA; not understanding eligibility. First, itâs important to understand which employers have to offer COBRA. The federal law says that employers with at least 20 employees in the prior calendar year must offer COBRA coverage starting the day employer-sponsored group health plan coverage ends. COBRA coverage can last up to 18 months under typical circumstances, or 36 months if certain events occur, e.g., the employee becomes entitled to Medicare, gets divorced or dies.
But itâs not enough just to follow the federal law. Employers often overlook that states can also mandate that group health plans offer continuation coverage much like COBRA â called âmini-COBRAâ laws â that typically affect smaller employers and provide greater benefits to employees than the federal COBRA law. For example, the New York âmini-COBRAâ law mandates 36 months of continued coverage for employers with fewer than 20 employees. In New Jersey, with some exceptions, the stateâs mini-COBRA law applies to employers that employ between 2 and 50 eligible employees, and provides employees with:
18 months if an employee is terminated or their hours are reduced
29 months if an employee becomes disabled
36 months for the dependent spouse or child of an employee who dies; goes through a divorce, legal separation, dissolution of a civil union or domestic partnership or otherwise loses dependent status.
Many other states have continuing coverage laws in place as well. And as if understanding the state and federal laws that apply to your employees isnât enough (and, it can be especially difficult if your employees live in multiple states) â there are also time-sensitive deadlines you must meet in order to stay in compliance with COBRA laws.
Not Complying with Notice Guidelines
One issue thatâs landed some employers in hot water is failing to send notifications, or not including the right information in these notifications. Letâs start with the basicsâemployers that sponsor group health plans must send an âinitial noticeâ or âgeneral rights noticeâ to covered employees and their covered spouses within 90 days of the date that coverage under the plan starts or, if later, the date that is 90 days after the date when the plan first becomes subject to COBRA.
In addition, and with some exceptions, once an employee separates from the company, the plan administrator (or employer, if the employer and plan administrator are the same entity) must send a COBRA âelection noticeâ within 14 days of receiving notice of a qualifying event, such as being terminated from employment or leaving the company. This notice describes the employeeâs rights to elect COBRA.
For both types of COBRA notices, the penalty for not doing this (i.e., in addition to the potential litigation costs) is up to $110 per day.
The Department of Labor outlines exactly what should be included in these notices and even supplies templates called âmodel noticesâ to help employers comply with these guidelines.
Not Understanding Whatâs Covered
COBRA allows employees to pay for the same group health plan coverage they enjoyed during employment â but at their own expense. Unless the employer agrees to pay for all or a part of the COBRA premium, employees are responsible for the full premium amount (plus a 2 percent administration fee). Under COBRA, the term âgroup health planâ coverage is defined broadly, and includes medical coverage and, depending on plan design, could also include prescription, vision and dental coverage. Life insurance, long-term care insurance and other similar types of insurance arenât considered âmedical coverageâ and arenât included in COBRA.
Health reimbursement accounts, or HRAs, qualify as group health plans, so employees must still offer reimbursement for their expenses under COBRA. Health FSAs are generally included within the definition of âgroup health planâ and are subject to COBRA, unless the account is âoverspentâ as of the date of the qualifying event. In such cases, an employerâs COBRA obligations are more limited.
COBRA, Severances and Mergers
One frequently asked question is how COBRA works with severance packages. Itâs not uncommon for employers to pay employeesâ COBRA health insurance premiums on a pretax basis for a few months as part of a severance package. But if the employee is considered âhighly compensatedâ by the IRS, and the employerâs health insurance plan is self-insured, the employee may be subject to paying tax on COBRA coverage as required under certain nondiscrimination rules under Section 105(h) of the Internal Revenue Code, which generally require that a self-insured employer canât discriminate in favor of highly compensated employees. Employers can avoid this issue by paying the employee for their COBRA premium on an after-tax basis.
Another point of confusion is how COBRA is administered during a company merger or acquisition.
There are a number of issues to consider, including what type of acquisition, sale or merger a business goes through, and the employeeâs status as a result of that event. These factors determine which entity in the M&A deal pays for COBRA, and which employees are eligible unless the parties to the deal have memorialized these terms in their relevant asset purchase or stock purchase agreement.
How to Stay Compliant
Managing COBRA properly can be onerous. Often employers fall into one of three categories when it comes to administering COBRA benefits:
Managing it in-house.
Relying on a broker.
Relying on a COBRA specialist.
Whether your organization takes on administering COBRA in house or relies on your insurance broker or other COBRA specialist, the potential liability for getting COBRA wrong is significant.
Harrison Newman is vice president and benefits consultant for Corporate Synergies.
Not understanding if your organization is subject to COBRA; not understanding eligibility. First, itâs important to understand which employers have to offer COBRA. The federal law says that employers with at least 20 employees in the prior calendar year must offer COBRA coverage starting the day employer-sponsored group health plan coverage ends. COBRA coverage can last up to 18 months under typical circumstances, or 36 months if certain events occur, e.g., the employee becomes entitled to Medicare, gets divorced or dies.