Commentary & Opinion Archives - Page 28 of 85

May 29, 2019June 29, 2023

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

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

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

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

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

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

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

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

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

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

May 28, 2019June 29, 2023

What Does a Valid Jury Waiver Look Like?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 27, 2019June 29, 2023

A History Lesson for #FixItSHRM Followers

Nearly a decade ago a well-intentioned group of HR leaders banded together to dispute several Society for Human Resource Management policies.

Not just some radical fringe group, the SHRM Members for Transparency questioned issues tarnishing the organization’s integrity, from doubling board members’ annual honoraria to allowing reimbursement for business-class travel to wanting more board members who carried HR credentials.

These veteran HR leaders had the pull to garner media attention as well as that of SHRM’s membership. And that caught SHRM’s attention. For a while, anyway.

Fast-forward to 2019 and we find a loose-knit group of today’s HR professionals taking to social media to dispute SHRM’s ties with the Trump administration and relationships with politically conservative companies, most notably the right-leaning Koch Industries. Like the transparency group, these are issues they believe harm SHRM’s reputation and mission. The objectors call themselves #fixitSHRM.

As we approach SHRM 2019 in mid-June in Las Vegas, #fixitSHRM’s protests aren’t aimed so much at internal SHRM policies as the perception of what SHRM represents.

The #fixitSHRM movement traces back to last August when relative unknown HR practitioner Victorio Milian originated the hashtag. Later that fall he fired off a string of tweets explaining the hashtag’s purpose to protest SHRM CEO Johnny C. Taylor Jr. and SHRM leadership embracing the “white supremacist Republican administration.”

Illustrated by a smiling Taylor — now in his second year as SHRM’s CEO — shaking hands with President Trump, Milian’s tweets continued, saying, “@johnnyctaylorjr shaking the current U.S. President’s hand was the spark that lit the #fixitSHRM movement. @SHRM’s ongoing silence to its members who are (rightfully, in my opinion), angry and disappointed about this alliance continues to keep the fire burning. … In my opinion, @SHRM’s alliance does not represent the ethical leadership that #HRpros should be demonstrating.”

Milian’s movement has garnered plenty of online support. Among many others, @k_boulder tweeted in mid-April, “Altered videos to promote racist tropes fanning the flames of hatred, & direction to underlings to break the law, promising no consequences. Ready to renounce this partnership yet, SHRM? #fixitSHRM”.

<blockquote class=”twitter-tweet”><p lang=”en” dir=”ltr”>Altered videos to promote racist tropes fanning the flames of hatred, & direction to underlings to break the law, promising no consequences. Ready to renounce this partnership yet, SHRM? <a href=”https://twitter.com/hashtag/fixitshrm?src=hash&ref_src=twsrc%5Etfw”>#fixitshrm</a></p>— Kelly (@k_boulder) <a href=”https://twitter.com/k_boulder/status/1117042317653757952?ref_src=twsrc%5Etfw”>April 13, 2019</a></blockquote> <script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>

It’s also caught SHRM’s attention to the extent where Taylor doubled down on affirming SHRM’s relationship with the Trump administration as well as SHRM’s affiliation with Koch Industries, according to HRDive.

That doesn’t necessarily bode well for #fixitSHRM’s quest. Still, questioning the motives of SHRM’s relationship with those who do not share or represent their values — and in the larger picture the values HR should practice in every workplace — is inherently a good thing.

I get their frustration. The Trump administration has done most everything you don’t want in a company: constant turmoil and turnover among senior leadership, shunning of D&I, and if recent reports are true, attempting to dismantle the Office of Personnel Management, the federal government’s HR department for civilian employees.

And your HR association is complicit with that? I’d be angry, too.

Taylor’s response though makes it clear that sniping through social media won’t change anything, especially with the 800-pound gorilla known as SHRM. They won’t alter relationships because a social media crusade dislikes their ties with the Trump administration and a financial deal with Koch Industries. I’d also wager that a majority of SHRM members either don’t care, are completely oblivious or actually agree with SHRM’s business dealings.

That means #fixitSHRM’s options to modify SHRM’s operations are limited. But history may hold lessons that could offer them hope for change.

The transparency group had the presence and panache to draw SHRM into two meetings. SHRM then abruptly chose to stop meeting. One transparency group member told Workforce at the time, “Their tactic was delay, delay, delay. We realized that they weren’t going to change.” Disappointing, but if #fixitSHRM is serious they can still push for face time. It’s happened before.

If you can’t get SHRM’s attention in the board room, there’s always the ballot box.

“A SHRM member told me, ‘If you want to change the society, the way you should do it is change the board,’ ” said Mike Losey, a former SHRM president and founding member of the transparency group in a 2011 Workforce interview.

Muster a slate of candidates, continue your barrage on social media and get out the vote. It’s a long shot. And FYI, the transparency group’s candidates never achieved its goal.

History offers a sobering realization that it will take more than a social media campaign to create change. Study the past, #fixitSHRM. Blend it with what you know and perhaps you’ll succeed where Members for Transparency couldn’t.

May 22, 2019June 29, 2023

In Harassment Cases, the Context of Profanities Matters (But Only Sometimes)

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 … .

May 21, 2019June 29, 2023

3 Ways for HR Professionals to Cultivate a Global Business Mindset

In today’s increasingly connected and international marketplace, HR professionals who have a strong understanding of global dynamics are going to have an advantage.

The question I often hear is, “How do I develop that global mindset?”

Many people in HR assume they can’t travel abroad and build valuable global knowledge unless their company sends them on an official work trip overseas. The reality is that you can take that initiative yourself and learn to become an effective global leader — whether you travel abroad regularly or not — and there’s a good chance your employer will take notice if you do.

These three steps will help you get started.

1. Develop Global Relationships Online

No matter what function you’re in within an organization, there’s a global community you can join via Facebook, LinkedIn or a professional association. These online communities are excellent ways to connect with your peers in other parts of the world and start meaningful conversations.

Investing time and energy in global social media groups can both help you with your professional development and expand your understanding of the global scope of your industry — all from your home or office.

2. Travel to an Overseas Conference, Then Hang Out

However, even if you’re active in every available international social media group for your profession, to fully expand your global understanding you’re going to have to travel. I would suggest figuring out how to travel internationally once a year — with an intention to visit a different country every trip. While this may sound daunting at first, there are practical ways to make it happen.

An excellent starting point is to attend a conference in another country or schedule an annual professional development trip overseas, then tack on some time to explore and network after your official business is wrapped.

For example, if you’re traveling to a three-day conference in another country, add a few days and use the connections that you’re making in your online groups to meet with people face-to-face in that city. There’s nothing better than immersing yourself in another culture.

3. Explore International Development Opportunities

A very powerful way to expand your global mindset is to travel with a group of like-minded professionals to really explore a specific country. A good place to begin is Nanda Journeys, a travel company that brings together travelers with purpose and passion to explore the world in a meaningful way — whether it’s nurses to Vietnam, dentists to Ecuador or HR people to Singapore.

An associate and I organize an HR delegation every year to a different country. In recent years, we’ve taken 21 HR-related professionals to Cuba for a week and another dozen to Japan. Last year we traveled with an HR group to the Czech Republic and Hungary. In each location, we meet with government officials, academics and business leaders about HR topics and talent issues.

On one of the trips, an attendee was the head of talent acquisition for a specific business unit inside a global organization, and she said the trip was part of her strategy to take on a more global job. This person was wisely investing in her ability to understand talent acquisition dynamics in other parts of the world.

When she returned her company took note of her willingness to invest her own funds and time in an international learning perspective and put her into a global job within a few months.

If you truly want to understand how things work in other parts of the world and make the investment to start your learning curve, your employer is likely to notice that effort and support your journey. And if they don’t then you have a great foundation to find an organization that’s more conducive to your global learning.

May 21, 2019June 29, 2023

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

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.

May 16, 2019June 29, 2023

Abortion Discrimination = Pregnancy Discrimination

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.

May 13, 2019June 29, 2023

The Importance of Happiness at Work

Last year, members of our HR community called me with common feedback that they were meeting so many people who are unhappy at work and life. Any research you choose to look at for the past 10 years averages nearly three-quarters of people are looking for jobs and many of them are unhappy with their work.

Mo Gawdat, the founder of onebillionhappy.org and former chief business officer at Google X, focuses on the relation between innovation and happiness. After losing his son Ali, he made it his personal mission to help 1 billion people become happier in all aspects of their life. I saw him speak last year and after he tells the room it is all right to be happy at work, Mo’s speech brought tears to thousands of attendees.

I agree wholeheartedly with Mo and my own belief is that we need to humanize, look ourselves in the mirror and be happy again at work and at home. We spend a substantial amount of our lives at work and I believe our happiness is impacted by how we feel in the workplace. This process of pursuing happiness highly resonated with me and the important role that HR professionals play in it.

Did you know that 65 percent of startups fail because the relationship between the co-founders also fails? This is same percentage for the top 10 countries with divorce rate worldwide. I think we can draw a correlation between the two: More relationships in the world fail than succeed.

If you haven’t heard of Esther Perel yet, be sure to catch one of her podcasts. A Belgium-born psychotherapist who now lives in New York, Esther helped change the lives of millions of couples. She is not afraid to tell people to “shut it!” and is working to unleash the chains of workplace relationships where jealousy, betrayal and bitterness can sabotage a business as much as a marriage.

Also read: Keeping Data Safe is the Next Wave of HR Tech Innovation

We’re especially seeing this in HR technology. Josh Bersin, the world’s leading analyst on the future of work, highlighted the move from automation to productivity in organizations over the past two years.

In the context of the digital revolution, Esther blames our devices for causing all sorts of new vices in the workplace. Esther feels that digital communication is damaging, and because 2D communication deprives us of our senses, the level of distortion between Slack or email messaging and face-to-face to voice communication is massive. Arianna Huffington echos this and encourages everyone to start introducing her Thrive Global model in their lives to disconnect from technology and reconnect more with life.

So I ask you, how different can our world and workplaces be in five to 10 years’ time if we start making work relationships better and innovate to support this ideology?

I ask everyone to rethink their happiness at home and in the workplace, and share their thoughts on how we’re going to change the future of work for the better.

May 8, 2019June 29, 2023

Workplace Civility Shouldn’t Be Something We Have to Legislate

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.

May 7, 2019June 29, 2023

Your Employees Do Not Understand Their (Lack of) Free-Speech Rights

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.