Category: Legal

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Menopausal Mentor: An Interview With Author Donna Faye Randall

Workplace health and wellness programs are based on providing solutions to what-if questions, such as: “What if my employee wants to stop smoking?” While it’s important to be proactive in addressing known health threats, these ailments will likely not affect all employees. On the other hand, most female employees will go through menopause. In her book, “Menopause or Lunacy … That Is the Question,” Donna Faye Randall shares anecdotes about dealing with menopause and the potential for bias against menopausal women. Sarah Sipek, a Workforce associate editor, spoke with Randall via email.

Workforce: What does workplace discrimination against menopausal women look like?

Donna Faye Randall: Like many forms of discrimination, it isn’t overt. As is the case with menstruation in the workplace, the symptoms of these ‘women’s issues’ are not taken seriously, causing the affected women to try to work through their symptoms as best as they can, or fabricate other health conditions so they can take care of themselves.

WF: What are the top symptoms of menopause that may interfere with a woman’s performance in the workplace?

Randall: When I refer to ‘menopause,’ I include perimenopause, menopause and postmenopause. For many women who don’t know what is happening to them as they continue to menstruate through these changes, fear accompanies the symptoms. They feel they can tough it out without confiding in anyone. Symptoms include headaches, cramps, the beginning of hot flashes, night sweats, major sleep deprivation and alarming mood swings. Women often report memory loss and confusion, which they don’t want to reveal to co-workers, let alone bosses, and so they tend to work extra hours to appear productive. To top it all off, often in this stage women experience major hemorrhaging, resulting in urgent trips to the restroom.

WF:  What can women do to remedy these symptoms?

Randall: There is no one-size-fits-all solution for women. Best-case scenario, women will be fortunate enough to find guidance in women who have already gone through menopause. Open dialogue will help younger women learn their options for alleviating symptoms.

WF:  Where can women go to get help for symptoms they can’t control?

Randall: A combination of Western and Eastern approaches is ideal, but it is often difficult to find a Western medical doctor with knowledge and belief in other therapies.

WF: What type of support should employers have in place?

Randall: I recommend information sessions for employers and employees to ensure everyone gets the same information. Provide sessions for females, for males and then a session with all female employees without the supervisors to give them a chance to ask questions and voice opinions as a group. The facilitators of these group sessions should then synthesize this information and provide recommendations.

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When One Act Is Enough for Harassment

To be actionable, the offensiveness of alleged harassment needs to be either pervasive (that is, happening often) or severe (that is, shocking to the system even if observed only once). In Macias v. Southwest Cheese Co. (10th Cir. 8/24/15) [pdf], a federal appellate discussed the difference in the context of a male employee who exposed himself to a female co-worker.

As to the second element concerning the severity or pervasiveness of the conduct, the district court concluded that the …  conduct …  was neither severe nor pervasive enough because it transpired over twenty months … .  His conduct was more than a mere offensive utterance; it was not only physically threatening and humiliating — if true, it was also criminal, see N.M. Stat. Ann. § 30-9-14. The environment was objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that Mr. Stewart might expose himself to her again or assault her in some way.

Thus, suffice it to say that if an employee exposes himself at work, you have a sexual harassment problem on your hands.

The bigger question from this case, however, isn’t whether actionable sexual harassment occurred, but why this employee kept his job after HR learned about the exposure. Employers, here is your take-away from today’s post. When an employee pulls out his little friend at work, do not hesitate to pull the termination trigger (once you investigate and reasonably confirm that that incident happened). I promise you that the risk from that termination will be far less than the risk from one or more of his co-workers suing you for sexual harassment.

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Independent Contractor Issues: A Tale of Drivers, Strippers and Lawsuits

Drivers suing Uber and Lyft for allegedly treating them as independent contractors instead of employees could learn a few things from another group of workers who successfully navigated the same road — strippers.

Since 2012, exotic dancers have won more than $27 million in judgments or settlements in at least seven employee misclassification lawsuits across the country, said Rich Meneghello, a labor lawyer who’s a partner at Fisher & Phillips in Portland, Oregon.

The strippers’ cases involved some of the same legal issues at the center of lawsuits filed in recent years against Uber, Lyft and other companies built on the so-called on-demand or 1099 economy model, where independent contractors make up some or most of an enterprise’s workforce.

If exotic dancers, drivers, house cleaners or delivery service gophers don’t control their work environment, and if a business wouldn’t exist without them, they’re employees, not contractors, Meneghello said.

“The overwhelming groundswell is for courts and government agencies to find that these individuals are employees and not independent contractors,” he said.
Employee misclassification lawsuits aren’t new. But the boom in venture-backed Silicon Valley startups such as Uber and Lyft that rely on a large labor force of independent contractors has caused a related boom in employee misclassification lawsuits.

It’s not just startups coming under fire for treating workers one way and paying them another. Since before the recession, established companies in a variety of industries have offloaded work to independent contractors to control operating costs. Even when the U.S. economy improved, companies didn’t return to hiring full-time employees. All told, an estimated 53 million people in the country work as independent contractors or freelancers of some sort, according to a 2014 Freelancers Union survey.

In July, the escalating number of lawsuits and complaints filed with federal regulators led the Labor Department to publish its first guidance on the issue. A 15-page document from the department’s Wage and Hour Division details the standards that companies should use to determine who is an employee, in part using an “economic realities” test to determine whether a worker is economically dependent on an employer or in business for him or herself. The document also explains how to analyze the control workers have over “meaningful aspects” of what they do to ascertain whether it’s possible to view them as running their own business.

Questionable Levels of Compliance
Despite how widespread employee misclassification lawsuits have become, many companies still don’t take the necessary actions to avoid them.

“There are a lot of companies with questionable levels of compliance,” said Richard Reibstein, a partner at Pepper Hamilton in New York and head of the firm’s independent contractor compliance practice group. Companies believe that since “they haven’t been called to task yet, it’s unlikely they’re going to have to do anything.”

That thinking could be misguided. Companies that have lost or settled employee misclassification lawsuits have paid out millions, and in some cases, filed for bankruptcy protection. In June, FedEx Corp. agreed to pay $228 million to settle an employee misclassification lawsuit that, if approved by the U.S. District Court for the Northern District of California, will resolve claims by more than 2,000 drivers dating back to 2000. Last year, a Kansas court ruled that hundreds of FedEx drivers who worked in that state from 1998 to 2007 were employees and not independent contractors.  The delivery service changed its business model in 2011 and now hires drivers through an intermediary company.  Lawsuits in other states are pending.

Learning About Employee Classification

Here are courses and other resources for learning about worker classification regulations:

  • U.S. Labor Department's Administrator’s Interpretation No. 2015-1 (PDF): The U.S. Labor Dept.’s Wage and Hour Division issued this 15-page memo in mid-July clarifying how employers should apply the Fair Labor Standard Act’s “suffer or permit” to determine whether workers are employees or independent contractors.
     
  • Society for Human Resource Management (shrm.org): The HR professional association covers classification issues in online and in-person courses offered throughout the year, including “SHRM Essentials of HR Management,” “Manage & Engage Your Organization’s Human Capital” and, for California employers, “California HR: Applying CA Law to Employment Practices. Fees for the for-credit courses vary.
     
  • American Bar Association (americanbar.org): The legal organization offers an online course, Independent Contractors and the Sharing Economy: Uber, Lyft, and other “Tech” Business Models based on a May 19 webinar with employment lawyers and 1099 economy companies involved in pending lawsuits. Fees for the continuing legal education course start at $89.
     
  • Independent Contractor Compliance
    (independent
    contractorcompliance.com    ):     The blog, published by Richard Reibstein and other lawyers in Pepper Hamilton’s independent contractor compliance practice group, covers employee misclassification and related issues, including recent lawsuits, Internal Revenue Service investigations, and state tax and workforce agency actions.
     
  • IRS (tinyurl.com/EmployerTaxGuide): The 2015 edition of the Employer’s Tax Guide (IRS Publication 15) is a comprehensive guide to federal regulations governing employees. Fill out and submit IRS Form SS-8 to determine whether a worker is an employee or independent contractor.
     
  • Bar Association of San Francisco (tinyurl.com/Legal-SF): The bar’s Justice & Diversity Center memo, “Penalties for Misclassifying Workers as Independent Contractors,” explains applicable California state labor codes, includes a list of common factors used to determine if a worker is an employee, and includes links to additional resources.

—Michelle V. Rafter

In 2012, the Southern California division of limousine operator Carey International Inc. filed for Chapter 11 bankruptcy protection after 16 drivers won a $4.5 million arbitration award stemming from an employee misclassification lawsuit. The lawsuit came in the wake of a 2011 California law that broadened the state’s worker misclassification regulations, including creating penalties of up to $25,000 per violation for companies that willfully misclassify employees as independent contractors.

Uber has fared no better. In June, the California Labor Commissioner’s Office ruled that a driver for the app-based car service was an employee, not an independent contractor, and therefore was entitled to be reimbursed for mileage and other expenses. Uber appealed, but if the ruling is upheld, it would award the driver $4,000. More importantly, it could eventually force the company to pay for benefits such as health care and Social Security for all 160,000 of its drivers.

Drivers for Uber and Lyft also have filed separate civil lawsuits claiming they are employees and as such are entitled to be reimbursed for expenses such as gas and vehicle maintenance. The companies’ requests to dismiss the cases were denied earlier this year, allowing both to continue toward jury trials.

Uber and Lyft aren’t the only 1099 economy companies being sued by workers. Two former house cleaners for Handy, an on-demand house cleaning and handyman service, filed a lawsuit in Alameda County (California) Superior Court claiming the company deliberately misclassified workers as independent contractors instead of employees. In the lawsuit, the ex-workers say they had to follow set protocols spelling out how to dress, clean and act around customers, what products to use, and how much to charge. They point to the protocols as evidence that the company exerts significant control over workers and therefore should classify them as employees. The lawsuit is pending.

In a class-action lawsuit filed against Instacart in March, workers accused the app-based grocery delivery service startup for failing to pay them for expenses such as overtime, gas and workers’ compensation.

Strippers won judgments or settlements in similar employee misclassification lawsuits because strip-club owners blatantly treated them like employees but classified them as independent contractors, Meneghello said. In some cases that Meneghello included in a 2014 presentation on the subject, club owners set dancers’ schedules and work hours, made workers clock in and out for shifts, and gave them a “dancers’ packet” with house rules to follow. One club gave dancers the choice of being an employee or contractor but made no distinction in the work either group performed.

However, it’s not up to workers to choose how they want to be classified, Meneghello said. Employers have to decide which status is legally correct for the situation and apply it. “A worker’s wishes will not be determinative, especially since they might change their mind when they realize they have a legal claim against you,” he wrote in the presentation.

Regardless of the type of company, the decision to use independent contractors or other contingent labor typically comes from operations, finance or other C-level functions, not human resources, Reibstein said. But HR has to deal with the consequences, so HR managers and middle managers should keep tabs on the company’s contingent labor practices and alert higher-ranking executives if they’re at risk of running afoul of labor laws, he said.

One way HR can bring attention to the issue is by talking about the legal exposure the company could be opening itself up to, for example, if their independent contractor agreement doesn’t accurately reflect “the realities on the ground,” Reibstein said. “The courts will disregard it.”

He recommends companies analyze contracts that they ask independent contractors to sign to ensure the agreements are structured and documented to match how they’re being implemented. “There are a huge number of companies for whom their independent contractor agreements aren’t properly documented, and they need to have those restructured or re-engineered to be consistent with their business model,” he said.

Doing nothing isn’t an option, especially for companies built on the 1099 business model. “Every one of those companies, and there are some big ones, are getting hit left and right, and they all probably thought they didn’t have exposure,” Reibstein said. “What they don’t know in the C-suite will hurt them.”

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Harassment Judgment

The U.S. Equal Employment Opportunity Commission brought sexual harassment and retaliation for opposing sexual harassment claims against New Breed Logistics on behalf of four former New Breed employees.

A jury returned a verdict of $1.5 million against New Breed and the alleged harasser. New Breed appealed, arguing that three of the plaintiffs had not engaged in protected activity sufficient to support a retaliation claim. 

New Breed specifically argued that the three employees did not complain about harassment. Instead, they merely told the alleged harasser, their supervisor, to stop his harassing behavior. New Breed argued that simply asking the harasser to stop his behavior did not qualify as protected activity because it does not amount to “opposition” to unlawful behavior under Title VII of the Civil Rights Act of 1964. New Breed took the position that employees need to actually complain to someone, rather than simply ask the harasser to stop, to be engaged in protected activity.

The 6th Circuit Court of Appeals rejected this argument, holding that telling a supervisor to stop his or her alleged harassing behavior qualified as “opposition” to unlawful activity under Title VII. Thus, according to the 6th Circuit, an employer can be liable for retaliation against an employee even where the only thing an employee does to “oppose” harassment is to tell the person doing the harassing to stop. EEOC v. New Breed Logistics, 2015 BL 114197, 6th Cir., No. 13-6250 (April 22, 2015)

IMPACT:Employers can be guilty of retaliation even where the only person aware of the protected activity is the harasser. Since employers should not expect harassers to report complaints about their alleged harassment, this makes it crucial that employees be well-educated in how and when to report harassment.  

  

   

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Supreme Court Rules in Favor of Insurance Subsidies

UPDATED: June 25, 2015, 12:08 p.m. CT

The U.S. Supreme Court has ruled in favor of keeping a key provision from the Affordable Care Act.

Thanks to a 6-3 decision in the King v. Burwell case, millions of Americans will retain their right to receive federal tax subsidies under the ACA.

The justices sided with the Obama administration, saying that the health care reform law allows Americans in all states — not just those in states that have established their own exchanges — to receive federal subsidies.

"Five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate, we finally declared that in America, health care is not a privilege for a few but a right for all," President Barack Obama said in a statement from the White House. "The Affordable Care Act is here to stay."

Chief Justice John Roberts wrote the court’s majority opinion.

During the March hearings on King v. Burwell, Roberts said he saw “a serious constitutional problem” in the idea that Congress would force states to set up exchanges or risk their residents losing tax credits.

Many feared that if the Supreme Court ruled against the legality of federal subsidies, millions of Americans would be left uninsured and that the U.S. health care system could effectively fall apart.

The ACA laid out a plan in which states had the ability to set up their own health insurance exchanges, but the federal government could step in and set up the exchanges for the states if they could not do it on their own. King v. Burwell questioned whether the U.S. government can subsidize insurance in the 34 states that have not yet set up their own insurance markets.

Justice Antonin Scalia wrote the dissenting opinion, saying that the decision “rewrites the law” and was “a bit of interpretive jiggery-pokery” on the part of the court.
 
 "We should start calling this SCOTUScare," he said. 
 
"Rather than rewriting the law under the pretense of interpreting it, the court should have left it to Congress to decide what to do about the act's limitation of tax credits to state exchanges," Scalia wrote.
 
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.” 
"The Secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is 'established by the state.” 
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.” 
"The Secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is 'established by the state.” 
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.” 
 
"The secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is established by the state.”
 
The ruling, the second Supreme Court case in which the justices have decided in favor of the ACA, preserves benefits for an estimated 6.4 million Americans.
 
In National Federation of Independent Business v. Sebelius from 2012, the justices upheld the “individual mandate," which requires Americans to purchase health insurance or pay a penalty.

While Americans can now celebrate their continued access to affordable health care, not much changes for employers, according to Gary Kushner, a Workforce columnist who is the president and CEO of Kushner & Co., a benefits consulting firm.

“Employers and individuals alike will be able to continue their planning for ACA compliance now knowing all exchanges will be treated the same,” Kushner said. “It also means that the employer responsibility provisions of the ACA will be unaffected. Any employer holding back on their planning in anticipation that the court would overturn some or all of the ACA should get started immediately.”

If the decision had gone the other way, the employer mandates and shared responsibility payments would have been removed in states that have federal exchanges, added Rachel Cutler Shim, counsel in the Tax, Benefits & Wealth Planning Group at law firm Reed Smith.

"That would have put into question all of the reporting requirements and whether they were still required and all of the work that employers have been doing to implement look-back period and the measurement method and to track hours so that they can determine which employees are full time would have all been for naught if you weren’t operating in a state that had a state-run exchange," Shim said. "Under the current decision where they essentially said federal exchange and marketplaces can give subsidies, then the shared responsibility payment remains intact, the individual mandate remains intact, and employers can move forward and implement the requirements of the act that they have been working on."

Though their responsibilities have not changed, employers must still be content with the numerous challenges of getting in compliance with ACA mandates, a task the Society for Human Resource Management has pledged to assist: “Today the Supreme Court reaffirmed the constitutionality of a key element of the Affordable Care Act," SHRM said in a written statement. "While this provision of the statute remains intact, other challenges in the ACA remain for employers. SHRM pledges to work with policymakers to address these challenges, including the definition of a full-time employee for coverage mandate, the pending excise tax on high-value health care plans and employer flexibility in offering wellness programs.” 

Jane Perkins, the legal director of the National Health Law Program, added in a written statement: "More than 8 million Americans can now breathe a sigh of relief knowing that the law — not ideology — carried the day."

Check back throughout the day with continuing coverage of the King v. Burwell ruling.

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Legal Briefing: Have Gun — Will Travel to Court if Pulled on a Worker

After Darnell Greathouse had not been paid for several months, he complained to the president and part-owner of JHS Security Inc., Melvin Wilcox. Wilcox responded, “I’ll pay you when I feel like it,” and then drew a gun on him, a response that Greathouse considered the end of his employment.

Greathouse filed a lawsuit in the U.S. District Court for the Southern District of New York alleging claims related to unpaid wages and retaliation for his complaint. The court denied Greathouse’s retaliation claim because he had not filed a complaint with a government agency or other prosecutorial authority. The 2nd Circuit Court of Appeals reversed, joining nine other appeals courts to hold that, in light of the U.S. Supreme Court’s decision in Kasten v. Saint Gobain Performance Plastics Corp., 131 S. Ct. 1325, (March 22, 2011), which protects employees’ oral complaints, the Fair Labor Standards Act does not require that a complaint be submitted formally to a government agency. Given that the FLSA’s phrase “filed any complaint” appears next to “instituted any proceeding,” the court said it may be construed as contemplating a “communication (such as an intra-company complaint seeking a change in company practice) that does not ordinarily trigger a ‘proceeding’ (such as an adjudicatory process).” Greathouse v. JHS Security, Inc., No. 12-4521 (April 20, 2015).  

IMPACT:Employees may have a valid retaliation claim if an adverse action occurs following an internal complaint.  

Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has office in Beverly Hills, California, and Chicago. To comment, email editors@workforce.com.

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Dealing With Demotions From HR’s Perspective

Every now and then, a situation arises where it becomes necessary to demote an employee.

Maybe a newly promoted manager isn’t quite ready to take on a larger role after all. Or maybe a position is being eliminated, but it’s important to retain a longtime employee.  Whatever the cause, there is only one way to handle a demotion: very cautiously.

Corey Witzel, vice president of human resources and general counsel at EmPowerHR, a human resources consulting firm, said companies need to ensure any possible demotion is well thought out and carefully executed.

“You could be demoting an employee for many different reasons, but they’re all risky,” Witzel said. “If you’re going to demote anyone, you have to do it very cautiously.”

Witzel said companies often choose demotions in order to avoid the severity of firing an employee outright, and the potential legal liabilities that come along with it. However, he warns that demotions can just as easily result in legal fallout if handled lightly.

“A demotion could be like a termination,” Witzel said. “You’re adversely changing somebody’s terms and conditions of employment, so you are still subject to employment discrimination laws. Because of what’s at stake, you can get sued and an employee can bring a discrimination charge against you.”

For this reason, Witzel said it is important that companies first determine the purpose behind a potential demotion. Appropriate reasons include a business reorganization, where employees have to be moved to different positions, or performance deficiencies, such as when an employee is given a promotion but turns out to be unsuited for the position. However, Witzel cautions against implementing demotions as punishment or as a temporary measure before eventually firing someone.

“A lot of companies do the demotion because they’re afraid of the second step, and they want to phase into it,” Witzel said. “It’s like: ‘We’ll demote her, we’ll see what happens, and then maybe we’ll fire her.’ Or: ‘We’ll offer a demotion and hope she doesn’t take it and quits.’ ”

That last option, Witzel said, is particularly dangerous, as employees can file a claim asserting that they were coerced into quitting.

“Demotions should be for when you’re trying to retain a great employee who for whatever reason can’t stay in their current position,” Witzel said.

Linda Willey, HR director at truck dealership and repair company Nextran Corp., said in order to avoid any negative consequences, demotions should be done sparingly, and only when the situation truly calls for it.

“In my experience, it’s been rare, and I believe it should be rare, because you should really do your due diligence when you are promoting to make sure they are a good fit and they have the skill sets,” Willey said. “If a company just has a vacancy and they quickly promote somebody who’s not ready for it just to put a body there, then that’s shame on the management for doing it.”

Willey, an HR Disciplines panelist for the Society for Human Resource Management, said any demotion is going to be inherently unpleasant, with the only exception occurring when the employee asks to step down, whether it’s because of personal reasons or because retirement is imminent.  To avoid demotions altogether, Willey recommends that companies take steps before promoting employees to ensure the position is a good fit. Job shadowing and prior training, as well as an orientation period when a worker takes on a new role, can make for an easier transition, Willey said.

If, despite these precautions, a promotion still does not work out, Willey said it is important to handle the situation with “grace and respect.” In addition, Witzel recommends absolute transparency.

“You have to have a very honest discussion with the employee,” Witzel said. “Tell them, this is why you’re being demoted. Your pay is going to go down, here is what it is going to look like. … If the person is mature enough and understands what you’re doing, then I think it can work.”

Amy Whyte is a Workforce editorial intern. Comment below or email editors@workforce.com.

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6th Circuit: Reasonable Belief About Unlawful Conduct Enough for SOX Retaliation

It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched — except, I think, the Sarbanes-Oxley Act. Today, that changes.

For the uninitiated, Sarbanes-Oxley (or SOX as it is known) is a federal statute, enacted in reaction to everal corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms. 

In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?

 
The facts in Rhinehimer are not complicated. Prior to taking a disability leave, Rhinehimer, a certified financial planner, transferred some of the assets of a long-term, elderly client into low risk, conservative investments. While on leave, Rhinehimer’s assistant alerted him to the fact that a co-worker moved some of those assets into riskier investments. Believing those moves to be contrary to the client’s estate plan, Rhinehimer sent an email to his supervisor complaining about the transactions. Upon his return from leave, Rhinehimer was disciplined for his “unprofessional” email. That email spawned an investigation by FINRA. When Rhinehimer informed his employer that he had retained an attorney in response to the FINRA investigation, he was fired.
 
At issue on appeal was whether a plaintiff claiming retaliation under SOX must allege the specific elements of fraud relating to the underlying transaction, or if a reasonable, but mistaken, belief about the illegality of the underlying (mis)conduct will support the retaliation claim.
 
The 6th Circuit held for the more liberal proof standard.

Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.… 

The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.  

If you are a publicly traded company, employees who lodge complaints about financial improprieties or other financial issues require special treatment. If faced with one of these complaints, do not get hung up on the right or wrong of the complaining employee’s belief about the illegal conduct, because, if you later fire that employee, it appears the reviewing court will not care. 
 
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Some Harassment Shouldn’t Be in the Eye of the Beholder

A hostile work environment is hostile for one of two reasons — the alleged misconduct is either severe (overtly offensive), or pervasive (repeatedly offensive). The more severe the misconduct is, the less pervasive it has to be.

In this context, consider the following from Satterwhite v. City of Houston [pdf], in which the 5th Circuit affirmed the dismissal an employee’s retaliation claim:

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing …, for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII. We have accordingly rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.

Thus, in Texas, Mississippi, and Louisiana, “Heil Hitler”  is “non-extreme conduct” (insert Southern joke here).

Two points to make.

  1. Some harassment shouldn’t be in the eye of the beholder. (Warning, offensive language ahead). Nazi jokes/comments should be sufficiently severe to raise the specter of Title VII’s protections against religions harassment. Similarly, utterances of overtly offensive terms like “nigger,” “kike,” or “cunt” should, in nearly all cases, suffice to state a claim under Title VII. There is no excuse for this stuff in the workplace. Period.

  2. If you have any doubt about point number one, it’s time for some harassment and EEO training in your workplace (which is a good idea annually anyway).
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What to Do When OSHA Comes Knocking

News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, the Occupation Safefty and Health Administration was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

  1. Fall Protection
  2. Hazard Communication
  3. Scaffolding
  4. Respiratory Protection
  5. Lockout/Tagout
  6. Powered Industrial Trucks
  7. Electrical – Wiring Methods
  8. Ladders in Construction
  9. Machine Guarding
  10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.