Tag: The Practical Employer

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

Jon Hyman The Practical Employer

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

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

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

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.
Who wins that fight? Does the court compel you to disclose the report, or does it protect it from disclosure as privileged?
In Barbini v. First Niagara Bank, a federal court recently addressed this very issue. It concluded that the lawyer’s investigatory report is not privileged and ordered its disclosure.
    1. Not legal advice. Not all communications between lawyer are client are privileged communications. The attorney-client privilege protects communications that are primarily or predominantly of legal in nature, the interpretation and application of legal principles to guide future conduct or to assess past conduct. It does not, however, protect communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles. When a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer the company’s lawyer, but a fact witness as to what occurred.

      (Sidebar: the lawyer/investigator will also have a conflict of interest precluding him or her from representing the company in the litigation, so don’t retain your litigation counsel to conduct the investigation unless you are prepared to find new litigation counsel for that case.)

    2. Waiver. If the employer wants to be able to rely upon the investigation at all as part of its defense to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action. It might be asserting a Faragher/Ellerth affirmative defense, or advice of counsel affirmative defense (as was the case in Barbini). In any of those instances, privilege will have to be waived, and the investigatory report, along with all of its related documents, will have to be produced.
As an employer, you should want to rely on your harassment investigation to prove the reasonableness of your response to the complaint. If you are trying to keep the investigation from the plaintiff-employee, in my mind it only begs the question of what skeletons you are trying to hide.
And, in this case, you are probably better off settling the case than digging in your heels and fighting a privilege fight you shouldn’t really be fighting in the first place.
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What Does a Valid Jury Waiver Look Like?

Jon Hyman The Practical Employer

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. The waiver is in writing.
  2. It is clearly and conspicuously delineated within an agreement, such that employee is not likely to miss it upon reading the contract.
  3. It is written in language for which it is reasonable for the employee to understand.
  4. The possibility of negotiation of any terms of the employment agreement is at least a possibility.
  5. If offers the opportunity for the employee to have their own counsel review it before the employee signs.
And, while it’s tempting merely to ape the language used in Kane, you should really have your own employment counsel review a jury waiver before you implement it in your own employment agreements.
I love the Kane case, because it gives employers something to think about other than, “Everyone else loves arbitration agreements, so we do too.” After careful deliberation, you might decide that arbitration agreements are the correct answer for your employees and your business. Before making that decision, however, consider the risks, benefits and alternatives. You might just decide that jury waiver is the right solution.
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In Harassment Cases, the Context of Profanities Matters (But Only Sometimes)

Jon Hyman The Practical Employer

Editor’s note: This post contains extremely graphic language.

“Why is everyone suddenly using the C-word?” asks Stan Carey in The Guardian. He blames Game of Thrones (video very NSFW — you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

Consider Reeves v. C.H. Robinson Worldwide, which decided the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate. …

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. … It is enough to hear co-workers on a daily basis refer to female colleagues as … “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” …

“Cunt,” referring to a woman’s vagina, is the essence of a gender-specific slur. …

The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it.

Thus, while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned “c-word” is the perfect example.

The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. And if you do, you’re just being a … .

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You Just Discovered You Hired a Sex Offender. Now What?

Jon Hyman The Practical Employer

A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

Legally speaking, it depends on the state in which you are operating. Laws that mandate state sex offender registries are more commonly known as Megan’s Law. All 50 states and the District of Columbia maintain these sex offender registries that are open to the public via websites. As of 2016, there were 859,500 registered sex offenders in United States. Some of these Megan’s Laws expressly prohibit an employer from using the state sex offender registry information for employment purposes (California, for example). Ohio’s Megan’s Law has no such requirement. Because these law do vary from state to state, you should check with your lawyer before refusing to hire, or fire, a registered sex offender.

Separately, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII  prohibits an employer from instituting a blanket rule against the employment of anyone with a criminal history, including sex crimes. Instead, employers must make an individualized assessment of the employee’s fit for the specific job at issue in light of the criminal history, taking into consideration factors such as the facts or circumstances surrounding the offense, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, and the essential functions of the job. Thus, the EEOC might take issue with a blanket policy against the employment of sex offenders in all cases.

These legal limits on an employer’s ability to fire a sex offender notwithstanding, I still see liability red flags that should make you very jumpy if you are deciding whether to hire or fire someone with this background. Specifically, what happens if you choose to employ this individual, and he or she commits a sex crime while on-the-clock or otherwise relating to the employment.

First, you should be worried about liability for negligent hiring/retention. An employer has an affirmative duty to protect its employees, customers, and anyone else that comes in contact with the business from risks of harm of which the employer knows or should know. If an employer hires or retains an individual despite knowledge of prior improper behavior (i.e., sex crimes), and the employee then sexually assaults someone, that injured party could argue the employer knew, or should have known, that the employee might hurt someone. You could even face liability for punitive damages for consciously disregarding for the rights and safety of other employees. This could potentially be a very expensive mistake for an employer to learn. And, I’m speaking from experience, having defended an employer in a case with these facts.

Second, I can envision an argument that the employment of a registered sex offender violates OSHA’s General Duty Clause, which requires employers to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to impose upon employers a legal obligation to provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine the employment of a registered sex offender violating this duty.

Separate from these legal issues that might drive you not to employ a sex offender, there are also workplace issues you’ll have to consider and manage. Since sex offender registries are mostly public, it’s not hard to envision a situation in which (1) an employee’s registration status becomes known in the workplace, and (2) it becomes fodder for gossip, discomfort, and scorn among co-workers. Not surprisingly, employees tend not to react well to news that one of their coworkers is a sex offender. They may demand you take immediate action and fire the sex offender, walk off the job in protest, or bully the sex offender into quitting. Do you want to deal with this level of discontent? Is a registered sex offender the mountain you’re willing to die on?

Thus, to address the question that started this discussion, if I’m an employer and I find out that I’m about to employ, or am employing, a registered sex offender, my decision is a relatively easy one. I’m either not hiring or firing. I’m all for rehabilitation and second chances, but in the case, let it be in someone else’s workplace.

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Abortion Discrimination = Pregnancy Discrimination

Jon Hyman The Practical Employer

Thanks to, among other states, Alabama, Georgia, and Ohio, the debate over abortion is raging.

Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

The latest, Ducharme v. Crescent City Déjà Vu, L.L.C. (E.D. La. 5/13/19), concerned an employee fired after requesting two days off to have an abortion. She claimed pregnancy discrimination, and the court held that Title VII’s prohibition against pregnancy discrimination also prohibits abortion discrimination.

The court finds that abortion is encompassed within the statutory text prohibiting adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” While an abortion is not a medical condition related to pregnancy in the same way as gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy related medical condition. … [A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

This case aligns with the only two appellate courts to rule on the issue, the 3rd and 6th Circuits, as well as the EEOC’s interpretation of the definition of pregnancy.

Case closed. If you learn that one of your employees is having, or has had, an abortion, do yourself a favor and just let her be. Her choice, for which you cannot punish her. Moreover, unlawful discrimination notwithstanding, I promise you that the decision she is making is painful enough, without you exacerbating her pain by firing her.

For more on this case, head over to the Employer Handbook Blog, where Eric Meyer covered it yesterday.

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Workplace Civility Shouldn’t Be Something We Have to Legislate

Jon Hyman The Practical Employer

Workplace harassment isn’t illegal unless it is harassment because of some protected characteristic (sex, race, age, religion, national origin, disability, or any other class protected by law).

Generalized workplace bullying or other mistreatment is not illegal unless it falls into one of those categories. Indeed, as the Supreme Court has repeatedly reminded us, workplace discrimination laws are not “a general civility code.”

Just because the federal workplace discrimination laws are not “general civility codes” does not mean that individual states can’t do more with their own laws.

For example, consider Tennessee’s Healthy Workplace Act. It encourages anti-bullying and respectful workplace policies by granting immunity to an employer from lawsuits alleging negligent or intentional infliction of emotional distress if that employer adopts such a policy. Tennessee even provides a Model Abusive Conduct Prevention Policy [pdf].

As originally drafted, Tennessee’s law only applied to public employers. Last week, Tennessee amended it to apply to all employers in that state.

Bravo to Tennessee for taking a stand against abusive bosses and other bullies at work. But also, how sad that we need a law to tell employees to treat each other like, well, like people.

The [Insert Entity Name] is firmly committed to a workplace free from abusive conduct as defined herein. We strive to provide high quality products and services in an atmosphere of respect, collaboration, openness, safety and equality. All employees have the right to be treated with dignity and respect.

The policy prohibits employees from:

  • Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;
  • Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or
  • The sabotage or undermining of an employee’s work performance in the workplace.

And it requires supervisors to:

  • Provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations;
  • Provide good examples by treating all with courtesy and respect;
  • Ensure that all employees have access to and are aware of the abusive conduct prevention policy and explain the procedures to be followed if a complaint of inappropriate behavior at work is made;
  • Be vigilant for signs of inappropriate behaviors at work through observation and information seeking, and take action to resolve the behavior before it escalates; and
  • Respond promptly, sensitively and confidentially to all situations where abusive behavior is observed or alleged to have occurred.

Such admirable goals. It’s just so sad that we need to legislate them into existence.

So here’s my version of the Healthy Workplace Act (and sorry for the language, but I figure we’re all adults here):

Don’t be an asshole!

The rest will take care of itself.
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Your Employees Do Not Understand Their (Lack of) Free-Speech Rights

Jon Hyman The Practical Employer

Congress shall make no law … abridging the freedom of speech….

So reads the 1st Amendment of the Constitution.

Take note that it does not say, “You have absolute freedom of speech in all things at all times.” It only prohibits government-imposed restrictions on speech.

Yet just last week, President Trump tweeted the following:

I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!

I promise you that if the president of the United States does not understand how the 1st Amendment works, your employees don’t understand it, either.

Indeed, according to one recent survey, only 28 percent of American workers understand that getting fired because of a social media post does not violate their 1st Amendment free speech rights. Clearly, employees do not have free speech rights at work.

There are four key exceptions to this rule.

    1. Public-sector employees. Government employees are the only employees the 1st Amendment actually protects. Still, their free speech rights are not absolute. The 1st Amendment only protects them as private citizens speaking on matters of public concern, and only then if the employee’s interest in speaking freely outweighs government employer’s interest in efficiently fulfilling its public services.
    2. Protected concerted activity under the National Labor Relations Act. Section 7 of the National Labor Relations Act protects the right of employees to, between and among themselves, discuss wages, hours, and other terms and conditions of employment. While the Board has attempted to narrow these protections over the past year, their scope is still fairly broad, even extending to obscene pro-union rants and racist picket-line threats.
    3. Protected activity under anti-discrimination laws. If an employee’s speech is in complaint about unlawful discrimination or harassment, various anti-retaliation provisions protect their speech from retaliation.
    4. Specific state laws that either protect employee speech or other lawful off-duty conduct. Several states have specific laws that protect an employee’s political speech, or, more broadly, speech in general. Even more states protect an employee’s right to engage in lawful off-duty conduct. Ohio has neither. Regardless check your state laws if you intend to regulate your employees’ speech, or otherwise take action against an employee for something that employee has said.

These exceptions not withstanding, your employees need to understand their lack of free speech rights as employees. I make this lesson a key point in my workplace social media training programs.

If so many of your employees operate under a misconceived and misunderstood notion of “free speech,” then I believe that it is your responsibility as their employer to educate them. After all, if you are going to hold them accountable for what they say, it’s only fair that they understand their responsibilities and the related consequences.

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A Cautionary Tale on Why We Background Check Employees

Jon Hyman The Practical Employer

Here is a cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby and Corbie Leslie filed a lawsuit against the Scott Fetzer Co. (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Fields had worked on and off since the 1970s for Crantz (a factory distributor of Fetzer-manufacured Kirby vacuums) as an independent dealer of Kirby vacuums. Over his decades of work, he had been charged with numerous criminal offenses, including embezzlement, unlawful imprisonment, domestic abuse, and rape.

In their civil lawsuit, the women claimed that Fetzer and Crantz were negligent in hiring Fields and allowing him to go on sales trips with them. The women also asserted claims against Fetzer alone for negligently failing to take appropriate precautions to prevent its independent contractors from hiring employees like Fields, and for negligent supervision of its independent distributor in its hiring practices.

The women alleged that after receiving Fields’s application to become a Distributor Trainee, Kirby conducted a limited background check on Fields, which showed that Fields had lied about his prior criminal record. They further alleged that had Kirby conducted a national search instead of a regional search, it would have discovered his criminal record was much more substantial than he disclosed (including rape). Nevertheless, with knowledge that “Fields had spent almost a year in jail for beating up his wife in 2000, and despite the fact that Kirby knew that Fields lied about his criminal record, Kirby approved Fields to be a Distributor Trainee.”

A year later, Fields applied to become a Factory Distributor. According to the women, Fields “again lied about his criminal record and Kirby again learned of his criminal record.” Despite again learning about Fields’s criminal past, “Kirby approved Fields’ application to become a Factory Distributor.” In the following years, Fields continued to commit crimes, including “forcible rape, first degree domestic violence, unlawful imprisonment, and assault.” While Fields was awaiting trial in the forcible rape case, Kirby learned that he had defrauded elderly customers. That crime appears to have been the tipping point for Kirby, and it terminated his factory distributorship.

Yet, after Fields’ release from prison in February 2012, Kirby rehired him, and he began selling their vacuums again. It was during this period of employment that he sexually assaulted Thompson, Raby, and Leslie.

I pulled these horrible facts from The Scott Fetzer Co. v. Great Am. Ins. Co. (6th Cir. 4/30/19) [pdf], an insurance coverage dispute relating to the long-since-resolved underlying claims brought by Thompson, Raby, and Leslie.

I hope, however, we can all spot the mistakes made here in screening and hiring Fields.

    1. It’s no longer acceptable to limited criminal background checks on employees locally or regionally. Our society is mobile, and the background checks we are conducting on potential hires should reflect this mobility by being national in scope. Almost all criminal records are available online, and there is really no excuse to do anything other than a national search.
    2. When you discover that an employee has lied about their criminal background, the only resolution is termination. The employment relationship is all about trust, and when that trust is broken the relationship is irreparably damaged.
    3. I’m all for second chances and redemption, but an individual with a history of rape and domestic abuse is un-hireable. Convince me otherwise.
    4. Why rehire someone after they are released from prison for rape, especially with all of this back story? This fact is the most head-scratching of them all.

There was little chance this story was going to have a happy ending. Let’s all learn from it by reviewing our own background screening and hiring processes.

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I Really Thought People Knew Better Not to Advertise Jobs ‘for Whites’

Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend after it posted a job that asked for candidates, “Preferably Caucasian.”

Helana McCabe asked a very simple question on Twitter:

Uh, hey @cynetjobs – what’s with this?

Your job listing for a mid-senior level business development position’s top qualification is “Preferably Caucasian”

How could you POSSIBLY think that’s okay?

Uh, hey, it’s very, VERY not OK.
Her tweet, at the time of publication, received 11,249 likes, 6,752 retweets, and 622 comments.

It took Cynet Systems 44 hours(!) to respond, with this tweet:

Cynet apologizes for the anger & frustration caused by the offensive job post. It does not reflect our core values of inclusivity & equality. The individuals involved have been terminated. We will take this as a learning experience & will continue to serve our diverse community.

Its CEO, Nikhil (Nick) Budhiraja, initially tweeted that the job posting was a “terrible mistake,” and that the person responsible had been sent for retraining. Apparently, someone told him that the company needed to take a stronger stand against racism, because that tweet no longer exists, and “sent for retraining” is now “terminated.”

A few thoughts.
First, what the holy hell? Do we not know better in 2019 (not to mention, 2009, or 1999, or 1969 … or, really, ever) that we can’t advertise jobs for “Caucasians”? This is HR 101. There should not be any lesson that needs to be taught here, period.
Second, you can prefer age, sex, religion, or national origin, but only if it’s a bona fide occupational qualification for the position. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission, of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots. Race or color, however, can never, ever be a BFOQ.
Third, this is not a training problem. If your recruiters do not know that they cannot prefer white candidates, they should not be recruiting for you.
Finally, 44 hours is way too late to respond to a 2019 crisis. When a story goes viral, your company needs to get out in front of it immediately. As bad as this crisis is, Cynet Systems made it that much worse by waiting almost two full days to publish its response. Cynet Systems has now been labeled as a racist company. The offensive job posting certainly created that perception, but its 44-hour delay in responding let the story, and the perception it created, percolate and fester. Every hour you let a viral story go un-responded-to adds time exponentially to undo the harm, if it can ever be truly undone.
So let this be a lesson to you and your business. Know who’s hiring for you, know what they are posting and do not wait to respond to bad press or bad social media.
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In Lamps Plus v. Varela, Supreme Court Signs Off on Death by a Thousand Cuts

Jon Hyman The Practical Employer

Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned it in 1905.

It translates variously as the slow process, the lingering death, or slow slicing. It’s more commonly known as “death by a thousand cuts,” in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

On April 24, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Management-side employment lawyers will herald this decision, along with Epic Systems v. Lewis (which held that agreements that compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims are valid under Section 7 of the National Labor Relations Act), as the death knell for wage/hour and other employment law class and collective actions. And, they are probably right. But, is this result a good result for employers?

I’ve previously discussed by distaste for arbitration as a forum for employment disputes. In sum: I do not think it’s the panacea many employers believe it to be; employers should instead consider jury trial waivers to cut the risk of runaway juries, and contractually shortened statutes of limitations to otherwise limit risk.

Also, however, consider whether by preventing employees from litigating claims as class or collective actions you are inflicting lingchi on your business. Yes, class actions are large, and unwieldy, and expensive. But they also offer the opportunity for finality. You will resolve the issue in one lone (albeit large) case. Alternatively, if you require employees to litigate their wage/hour claims (for example) in individual lawsuits, instead of facing one claim, you will expose your business to dozens, or hundreds, or thousands of individual claims, each carrying with it a small amount of damages for unpaid wages, and a large exposure for an attorneys’ fee award in each case. And while attorneys’ fees are the number one risk factor for employers in wage/hour class and collective actions, would you rather expose yourself to one potential award of fees, or dozens, hundreds, or thousands? And, don’t forget about arbitration fees, which, often times, employers are contractually obligated to pay in full.

So, before you jump on the class-action waiver bandwagon, talk to your employment lawyer and consider whether it’s really in the best interest of your business. Do you want one larger cut, or thousands of smaller ones?