Category: Archive

The most effective anti-harassment policies should encompass ten important points. These include:

1. Adopt (or review and revised) sexual harassment policies that clearly enunciate a “zero tolerance” attitude toward sexual harassment retaliation against complaints of harassment.
2. Identify all supervisors and make them accountable for compliance with the employer’s policy.
3. Train all supervisors on sexual harassment prevention.
4. Train non-supervisory employees on the sexual harassment policy and the procedures to follow if they experience harassment.
5. Obtain a signed receipt when distributing the policy to employees.
6. Redistribute the policy periodically (at least annually) and obtain updated receipts.
7. Instruct appropriate managers on the guidelines for conducting investigations of sexual harassment complaints.
8. Incorporate the sexual harassment policy into new employee orientation.
9. Document efforts to prevent and correct harassment and any employee’s failure to take advantage of the opportunities provided by the employer.
10. Assert the new affirmative defense in pending or future sexual harassment lawsuits.

Source: Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, December 14, 1998.

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Here is a recent court case on sex discrimination, followed by a short synopsis of what it means to you:

Ninth Circuit Clarifies Standard of Evidence for Pretext in Sex Discrimination Cases.

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998)

In Godwin, the court framed the issue as follows: “What showing of pretext by a plaintiff in a sex discrimination suit is sufficient to overcome a defendant’s motion for summary judgment, where the defendant asserts that its refusal to promote the plaintiff was based on legitimate, non-discriminatory motives?” The court’s answer to that question, however, would seem to apply to a broader range of discrimination cases.

Marsha Godwin had been a sales manager for Hunt Wesson for nine years when two marketing manager positions became available. She applied for both positions, but was rejected in favor of male candidates. She then brought a claim under the Fair Employment and Housing Act, which apparently was removed to federal court. After the district court granted the employer’s motion for summary judgment, Godwin appealed.

The court first noted that Godwin had made out a prima facie case of sex discrimination and that Hunt Wesson had come forward with evidence of a non-discriminatory motive for its decisions. The court focused its attention on the pretext component of the case to determine what quantum of direct or circumstantial evidence the plaintiff must produce in order to create a triable issue of fact.

Citing exclusively federal cases decided under Title VII, the court held that where the plaintiff has direct evidence of discrimination (defined as “evidence which, if believed, proves the fact of discriminatory animus without inference or presumption”), the plaintiff must adduce “very little” to proceed to defeat summary judgment. Here, the court found ample such evidence—including a statement that one of the male managers “did not want to deal with another woman manager,” and evidence that a woman manager had been given a “Barbie doll kit” containing two dildos and a bottle of Wesson oil at a sales meeting.

Where such direct evidence is unavailable, a plaintiff must come forward with circumstantial evidence, defined by the court as “evidence that tends to show that the employer’s proffered motives were not the actual motives because they are inconsistent or otherwise not believable.” Such evidence, opined the court, must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate.” Here, the court also found sufficient circumstantial evidence to send the case to the jury, finding the contemporaneous reasons given for the selection of male candidates inconsistent with the statements on which the employer relied. For example, noted the court, the employer asserted in its defense to the summary judgment motion that “creativity” was the most important consideration for the manager positions, yet that the criterion did not appear in contemporaneous memorandum prepared at the time of the selections. In addition, Godwin’s recommendations characterized her as “creative,” yet she was not selected.

What It Means to You:
Godwin seems to raise more question than it answers. The court’s definitions of “direct” and “circumstantial” evidence seem too facile to be of much use in the usual discrimination case, where the line between evidence that directly indicates a discriminatory animus and that which only suggests such an animus is inherently blurred. In addition, the court does not provide much guidance as to the quantum of evidence required to defeat summary judgment. For example, does the court’s statement that “very little” direct evidence is required mean that any scintilla of evidence, no matter how minor, will defeat summary judgment? Similarly, what does “specific” and “substantial” mean in the context of circumstantial evidence, which by its nature is more indirect and diffuse? These questions will have to await clarification in later decisions.

Source: “The Purple,” Copyright Landels Ripley & Diamond, LLP, Fall 1998. Reprinted with permission.

Here is a recent arbitration case of interest, followed by a short summary of what it means to you:

Waiver of Mandatory Arbitration Provision Must Be Knowing. Kummetz v. Tech Mold, Inc., 152 F. 3d 1153 (9th Cir. 1998)

William Kummetz worked for Tech Mold as a steel mold maker in its prototype department. After four months of employment, Tech Mold sought to demote Kummetz to a miller position, claiming that he lacked the skills necessary for the mold maker position. Kummetz asserted that the company did so only after learning that he previously had undergone a kidney transplant. He then resigned and filed an action under the Americans with Disabilities Act.

The district court granted summary judgment for Kummetz, finding that he had waived his right to bring a civil action by accepting Tech Mold’s mandatory arbitration provision at the time he began employment. The Court of Appeals reversed.

Shortly after beginning his employment with Tech Mold, Kummetz had received an Employee Information Handbook and an Acknowledgement form for that Handbook. The Acknowledgment form confirmed Kummetz’s understanding that he was subject to the terms of the Handbook, and reaffirmed his at-will status. The form made no mention of the company’s mandatory Dispute Resolution Policy, which was referred to, but not included, in the Handbook.

In concluding that Kummetz was not bound by the mandatory arbitration provision, the Court first reaffirmed that employees can waive their right to bring civil claims under the ADA and other civil rights laws. However, in order for such a waiver to be valid, the court held, it must be truly knowing: “the choice must be explicitly presented to the employee and the employee must explicitly agree to waive the specific right in question.” Because the Acknowledgement form Kummetz had signed made no mention of the mandatory arbitration provision, the court held that Kummetz had not made a knowing waiver. The court concluded: “Only if Tech Mold had specifically called Kummetz’s attention to the arbitration clause in the booklet would the clause suffice in the face of the uninformative Acknowledgement.”

What It Means to You:
Kummetz is a good reminder of the (at least in the Ninth Circuit) general hostility to employer policies that require employees to waive their right to bring civil actions for alleged civil rights violations. Any employer seeking to implement such a policy must do so in a very overt way that specifically advises the employee of the nature and scope of the waiver. The court hinted that even that might not be sufficient, however. Because the court found Kummetz’s waiver was invalid, it did not address Kummetz’s additional contention any that such waiver, when made a condition of employment, violates the Civil Rights Act of 1991. Employers should expect the Ninth Circuit to address that question in the not-too-distant future.

Source: “The Purple,” Copyright Landels Ripley & Diamond, LLP, Fall 1998. Reprinted with permission.

What should you do if you suspect an employee is planning to leave? According to Robert Half Reports there are several actions you can take:

Be Direct
Privately ask the individual if they are indeed looking for another job. Most people will answer honestly.

Find Out Why
You may find out that the person is not unhappy with the job, but rather has a personal crisis that is affecting his or her work. If there are other reasons, and you truly value this individual, you may be able to reach an agreement that keeps the person with you. At the very least, you’ll learn of situations that could be making others unhappy.

Don’t Make a Counteroffer
If the employee has already accepted another position, it’s probably best to let them leave. Counteroffers are seldom successful in ensuring long-term continuity. Research from Robert Half International shows employees who accept counteroffers are no longer with the company as little as a year later. The reasons that prompted them to move on are often too strong.

Wish Them Well
If an employee has accepted another position, wish him or her well in their pursuits and leave the door open should they decide to return.

SOURCE: Robert Half Reports, Robert Half International Inc., Los Angeles, CA. Volume II, 1996.

You receive an application for a job opening from what appears to be a glowing candidate. But remember, job seekers have been known to do just about anything to get hired. These people put a great deal of time and energy into falsifying their applications so you think they are doing you a favor by applying for the position. Don’t fall prey to the deceit. Here are the most common areas of deception to watch out for:

Misrepresentation
It is a common practice for dishonest employees to claim a degree when in fact they have none. Some applicants have gone to the extent of producing fraudulent documents to back up their claims. There are even services that create falsified documents for a fee.

Criminal Backgrounds
Failure to report a past criminal conviction is another common omission from the employment application. Criminal information is extremely important for any company or organization. It’s hard to tell from a written application if someone has an abusive nature. Fortunately, domestic violence is a matter of public record. This kind of information typically turns up in the background check when professional investigators are involved.

Credit History
Failure to meet financial obligations is becoming more common. This is an important inquiry and could help expose a person’s poor judgement and/or propensity to steal.

False Dates
Dates of hire and termination are often fabricated in order to hide an indiscretion, such as an unsuccessful or unreported employment. Applicants often believe that there should be no unemployment periods, so they hide them with false employment dates.

Reason For Leaving
It is important to know why an individual leaves a job. Too often, applicants either fabricate or omit actual reason for leaving. The truth can be determined through the supervisory interview.

SOURCE: Cleveland-based Research Associates, Inc.

The following are brief summaries of some of the new laws, rules and regulations affecting employment in 1999.

• To encourage employees to file complaints about labor abuses without fear of deportation, workplace inspections of discrimination complaints, wage and hour violations will no longer include inspection of employees’ I-9 forms.
  Memorandum of Understanding Between Justice Department’s Immigration and Naturalization Service and Labor Department’s Employment Standards Administration, 227 DLR E-1, 11/25/98.
• Health insurers with policies in effect on or after October 21, 1998 that cover mastectomies will be required to cover reconstructive surgery, and must have notified all participants of such by January 1, 1999.
  Women’s Health and Cancer Rights Act of 1998, 226 DLR AA-1, 11/24/98.
• Health plans covering maternity benefits must provide 48-hour hospital stays for vaginal delivery and 96-hour stays for cesarean deliveries, effective January 1, 1999.
  Interim Final Rules on Newborns’ and Mothers’ Health Protection Act of 1996, Federal Register, 10/27/98.

Impact:
Employers must stay current on new federal, state and local laws and regulations. Employers should schedule, at a minimum, an annual survey of all new employment requirements, followed by an audit of their policies and programs to ensure compliance.

Source: D. Diane Hatch, a Human Resources consultant based in San Francisco, and James E. Hall, an attorney with Barlow, Kobata & Denis, based in Chicago and Los Angeles, December 21, 1998.

Here are some tips on 401(k) or other retirement plan fees:

• Figure out what the plan’s direct and indirect costs are. This may take some digging, particularly if the plan is handled through an insurance company. Next, even if the employer is happy with its service providers, it may want to send a request for proposals to several providers to get a sense of the market for plan services. Employers mainly concerned about investment costs can ask an independent advisor to evaluate expense ratios and other fees charged by the plan’s investment vehicles.
• Don’t be shy about negotiating. Many administrative and some investment fees can be reduced for desirable customers.
• Be careful about annuities. Many employers don’t understand that the plan pays an additional fee to the insurance company to “wrap” mutual funds in an annuity product.
• Annuities also often have charges for life insurance features that the plan does not need.
• Reconsider bells and whistles. If the plan has administrative features or investment options that participants don’t want, it may be possible to save money by eliminating them.
• Consider index funds. These funds have lower expense ratios than actively managed funds because their managers do not pick stocks based on research, but “passively” track the market.
• Ask about institutional funds. Most 401(k) plans invest in the same retail funds that are sold to individual investors. These tend to have higher expense ratios than funds sold to institutional investors, some of which may be available even to small retirement plans.
• Don’t expect something for nothing. “Free” administrative services may not be a bargain if they are exchanged for high investment charges.
• Get help. An independent consultant without ties to an investment company or administration firm can provide an objective evaluation of current fees and suggestions for improvements.
• Finally, remember that fees are necessary—it costs money to run a profitable, understandable retirement program. The cheapest fund or service provider is not necessarily the prudent choice—nor is the most expensive.

Source: “The Purple,” Copyright Landels Ripley & Diamond, LLP, Fall 1998. Reprinted with permission.

Is your wellness program sickly or robust? The Portland, Oregon-based Wellness Incentives Report offers this checklist of questions about your wellness program:

• Does the program motivate the high-risk population to participate?
• Does it have a proven track record in risk reduction?
• Can program results be tracked and supported?
• Does the program respect the insured’s right of privacy?
• Is the program backed by a professional wellness-services staff that helps participants reach their goals?
• Does the program have a maintenance component for promoting long-term success?
• Can the program service multiple locations?
• Does it focus on achieving measurable results?
• Does the program give a positive return on investment?

SOURCE: Wellness Incentives Report, Portland, Oregon.

Because the United States is physically isolated from most other countries, we often grow up without much international training,” says Barbara Pacther, trainer and author based in Cherry Hill, New Jersey. She advises watching out for these five common mistakes.

Not doing your homework before you go abroad.
When traveling you are the visitor, so you are the one who must adapt. Read and study before you go.

Expecting business to be done in the “American Way.”
Many cultures don’t have the same style of getting right down to business. Often, it’s customary to establish a personal relationship before you do business. Take the time to get to know each other before diving in.

Reacting negatively to the customs of another country.
Be careful not to make negative comments about any custom or practice you find different, disagree with or possibly even find offensive. And comparing customs or bragging about elements of U.S. culture is also going to be considered rude.

Taking for granted the person speaking English will always understand you.
Many international business people do speak English very well. However keep in mind that it’s not their first language. It may helpful to speak a little more slowly than usual, but not more loudly. Stay away from using slang, buzzwords and jokes—they often don’t translate well.

Misinterpreting the nuances of nonverbal communication.
In the U.S., you’re taught to look someone directly in the eye when speaking to that person. In some Asian cultures, you look away to show respect. Also, when talking with someone, be aware that your proximity to the person is also dictated by custom. It helps to be mentally prepared for these differences so they won’t distract you from listening and understanding.

SOURCE: Barbara Pacther, Cherry Hill, New Jersey. Spring 1996.

General contractors may be liable for their subcontractors’ violations of the Occupational Safety and Health Act (OSHA).

R.P. Carbone Construction (RPC), a general contractor constructing a recreation center, hired CommSteel as a subcontractor to perform the project’s steel erection work. An OSHA inspector determined that CommSteel had failed to provide its employees with fall-protection equipment for workers operating more than 25 feet above ground in violation of applicable OSHA regulations. A penalty and fine of $1,500 were assessed against RPC because it could have detected and corrected the violation, but did not.

In affirming the administrative law judge’s decision, the U.S. Sixth Circuit Court of Appeals held that RPC was liable for the subcontractor’s violations because: One, RPC failed initially to review CommSteel’s safety program; Two, RPC didn’t ensure the program was in place during the first two weeks; and Three, the violations were in plain view of RPC’s project superintendent who was on the site twice daily. R.P. Carbone Construction Co. vs. OSHRC, 6th Cir., No. 97-3427, 11/16/98.

Impact:
General contractors must be aware of OSHA requirements and the safety programs of their subcontractors.

Source: D. Diane Hatch, a Human Resources consultant based in San Francisco, and James E. Hall, an attorney with Barlow, Kobata & Denis, based in Chicago and Los Angeles, December 21, 1998.