So many times an employer gets in trouble for following logic instead of the law.  Quite often what is logical just isn’t legal, and that can be tricky for many managers and HR professionals.  It trips them up.  That’s why one of my favorite topics to speak about is Employment Law Bloopers and Lessons Learned.

If you are interested in this topic, and like to learn employment law from stories (instead of detailed powerpoints with dense legal citations), then you have two chances to come hear me speak.  First, on August 28th at the California HR Conference in Long Beach, and second on August 29th at the FIRMA (Foodservice Industry Risk Management Association) Conference in Fullerton.

65071107 – woman hand writing what have you learned? on blank transparent board with a marker isolated over water background. business concept. stock photo

One of the bloopers I will be talking about is “Ignoring Warning Signs from Top Performers.”  Those who read my blog posts know this is an issue close to my heart.  And it is all over the news regardless of industry, from tech, to media, to entertainment, to universities and more.  Other bloopers involve skipping steps when dealing with the interactive process and reasonable accommodation, retaliation, and the mistakes people make with emails and social media (like those texts we see in litigation from managers to employees sent in the wee hours of the morning on issues unrelated to work … you get the idea).

Come be entertained on August 28th or 29th and learn a few things too!

There’s a saying that “Bad facts make bad law.” At least that’s the way I was taught it. A different version: “Hard cases make bad law” has its own Wikipedia entry. While the wording is different, the meaning is the same. When the facts are extreme, they serve as a poor basis for defining general legal principles.

Here are the bad facts:

A dairy hired an employee even though it knew he was not authorized to work in the US. When he told them after two years that he had a better offer from another dairy, his employer threatened that, if he left, it would report the other dairy to federal immigration authorities. So he stayed.

Nine years later, he sued his employer for a variety of workplace violations, including failure to pay overtime or to provide meal and rest breaks. Ten weeks before the case is going to trial, the employer’s lawyer schedules a deposition of the plaintiff but arranges to have US Immigration and Customs Enforcement (ICE) take him into custody and deport him. There’s even an e-mail from the lawyer to ICE letting them know the employee “will be attending a deposition next week. If there’s an interest in apprehending him, please let me know so that we can make the necessary arrangements…” Apparently, the employee got wind of the plan and agreed to settle his case. To make matters worse, the lawyer had used this ploy on at least five other plaintiffs who were suing his clients.

Copyright: cherezoff / 123RF Stock Photo

The plaintiff then sued the attorney for retaliation under the Fair Labor Standards Act. He chose that statute because it allows such claims against “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The federal district court dismissed the claim because the lawyer did not exercise any control over the plaintiff’s employment. However, the 9th Circuit Court of Appeal reversed. In doing so, it rejected the need for any economic control. It said that, while only employers can be responsible for not paying employees correctly, anyone acting on behalf of the employer can be liable for retaliation.

What the lawyer did was wrong. There are ethical rules that state that an attorney in California “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Lawyers who violate that rule or otherwise abuse their power, can be sanctioned, suspended, and even disbarred. There are also civil claims available for abuse of process and malicious prosecution. So there are penalties for this type of behavior already. However, giving plaintiff’s the right to sue their employer’s lawyers for retaliation will lead to far more problems than it will solve. Litigation is inherently contentious. Parties tend to dislike the lawyer on the other side. But in every other situation I know of, courts have ruled that there’s no right to sue the other side’s lawyer and that allowing such suits will lead to a multiplicity of litigation. The Ninth Circuit, dealing with an extreme situation, held otherwise. Like the saying goes, bad facts make bad law.

The case is Arias v. Raimondo. You can read the opinion here.

No matter which part of the political spectrum you might find yourself on, whether it be the far left, the alt right, or somewhere in between, this past weekend certainly provides some food for thought applicable to California employers.

Gender equality word cloud
Copyright: arloo / 123RF Stock Photo

The country, and many workplaces, have become increasingly polarized.  Yet many people are craving inclusion and a sense of hope.  Employees want to be valued, appreciated and heard.  Supporters of the new administration certainly voiced a sense of hope that things might change, and that those left behind by a growing economy will see some actions to address their concerns.  The hundreds of thousands of people who marched in various cities across the county, including a reported 750,000 here in Los Angeles, also voiced a need for a sense of inclusion with other like-minded individuals, even if those people may have different views on specific issues.

While discussions about politics in the workplace can be divisive and are universally not recommended, discussions about inclusion are important.  That inclusion can be based on sex, race, sexual orientation, religion, disability or any other category protected by law.  In fact, the law here in California has granted protections to individuals in workplaces who raise concerns about pay equity, discrimination, harassment, and retaliation for raising concerns about any such issues.  So open discussions in the workplace should be welcomed.

Many people are wondering what they can do to make a difference.  On that issue, and as it relates to inclusion in the workplace, here are a few suggestions (several adapted from the Father of a Daughter Initiative):

  • When someone at work opens up to you about an issue they believe is unfair, hear them out and resist the urge to be defensive.  You don’t need to agree, but you can certainly listen and try to understand their point of view.
  • Act to correct issues of bias or micro-inequities you may witness or hear about.  This can be as simple as repeating and emphasizing what someone with less power says at a meeting, while explicitly giving that person credit (“as Maria just said, I agree that we need to ….”).  This concept has been referred to as “shine theory” or “amplification.”
  • If you are in a position of power, make sure to look beyond your regular go-to personnel, and expand your net to someone you may not have considered for a special assignment or important role.
  • Be a visible advocate for those in your workplace less powerful than you are.

My hope, as Co-Chair of my firm’s Womens’ Initiative, is that this weekend’s momentum can be followed by many individual acts of inclusiveness at work.  Change starts with each one of us.  Let’s all be open to alternate points of view, make a difference in our own way, and strive to be a positive influence on those around us.

The Equal Employment Opportunity Commission issued its new “Enforcement Guidance on Retaliation and Related Issueson On August 25, 2016. Careful readers will be able to deduce from the section titled “Expansive Definition” that the EEOC uses an expansive definition of what constitutes protected activity. This activity is “protected” in the sense that any adverse action taken against someone for engaging in it is, by definition, retaliatory.

The EEOC Enforcement Guidance lists the following types of protected activity:

  1. Complaining about discrimination against oneself or others – This is the prototypical protected activity.
  2. Threatening to complain about discrimination against oneself or others
  3. Providing information in an employer’s investigation of discrimination or harassment
  4. Refusing to obey an order reasonably believed to be discriminatory
  5. “Passive resistance” – The EEOC gives the example here of a supervisor refusing a request to dissuade subordinates from filing EEO complaints. Apparently, the refusal doesn’t need to be articulated. Just not acting on the request is considered protected.

    Copyright: rtimages / 123RF Stock Photo
    Copyright: rtimages / 123RF Stock Photo
  6. Advising an employer on EEO compliance
  7. Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.
  8. Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.
  9. Requesting accommodation for a disability or religion
  10. Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.

By taking a very broad view of what constitutes protected activity, the EEOC all but ensures that retaliation claims will remain the most popular charge it receives. We’ve previously described six steps that employers should take to protect themselves from these charges. As with so many types of employment claims, it pays to be proactive.

The Equal Employment Opportunity Commission reports that, in fiscal year 2015, 44.5% of the charges it received alleged retaliation. That makes retaliation the most popular charge it received by a large margin. Previous statistics showed that retaliation claims were even more popular at the Department of Fair Employment and Housing – the EEOC’s California counterpart.

Copyright: bds / 123RF Stock Photo
Copyright: bds / 123RF Stock Photo

A lesson for employers here is that successfully addressing a discrimination complaint is only half the battle. Plenty of deficient discrimination claims have led to valid retaliation claims.

Expect retaliation claims to remain popular. Proactive employers should take steps now to minimize their risk. Last September, I discussed these six steps employers can take to avoid retaliation claims.

I was recently reviewing the Department of Fair Employment and Housing’s Annual Report (don’t you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation. Why is retaliation such a popular claim?

Some of it involves the way people perceive their interactions. An employee who has complained about discrimination will likely be vigilant in watching for some sort of adverse treatment. Any perceived slight, real or imagined, can give rise to a retaliation complaint. On the other side of the coin, someone who has been accused of discrimination or harassment may greatly resent having their professionalism and integrity attacked and find it very difficult to treat the accuser as if nothing happened.

So what can employers do?

    Copyright: innovatedcaptures / 123RF Stock Photo
    Copyright: innovatedcaptures / 123RF Stock Photo

  1. Make sure your policies on discrimination and harassment specifically prohibit retaliation.
  2. Make it easy for employees to raise concerns in the first place. This requires identifying multiple individuals that workers can turn to if they believe they’re a victim. The sooner an employee raises an issue, the easier it is to resolve.
  3. If an employee raises an issue, make sure that the complaining employee and the accused understand the policy against retaliation and when and how to report concerns. The accused may well want to avoid the accuser completely, but that can give rise to a claim, too. Encourage the accused to seek guidance from HR if he or she has questions about workplace interactions going forward.
  4. Avoid any changes in the complaining party’s duties, compensation, benefits, title, or anything else that can be characterized as an adverse action, especially during the period right after the employee complains.
  5. Monitor the situation closely. Have a senior manager periodically follow up with the complaining party. This is not passing the person in the hall and asking “How’s it going?” This is private, closed-door conversation in which the complaining party is encouraged to discuss any ongoing concerns, with periodic follow-up.
  6. Document. Document. Document.

As long as there are complaints of workplace discrimination and harassment, there will be complaints of retaliation. But these steps can help to minimize the risk.

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.

 

I just returned from the Cornell HR in Hospitality Conference in Las Vegas with my partner Carolyn Richmond.  I participated in the Executive Summit and shared ideas with some of the most progressive minds in the hospitality industry.  Here is my top ten list of take-aways:

  1.  Once a year performance reviews are backwards looking, and millennials (soon to be 50% of the workforce) want consistent feedback.  As one panelist put it “you can’t drive looking through a rear view mirror.”  It is time to re-think how you provide feedback.
  2. Similarly, once a year employee engagement surveys can have limited value, especially when the management team has learned how to manipulate results (such as by scheduling the employee appreciation party right before the survey goes out).  Plus, if you aren’t going to fix the issues identified in the survey, conducting one can do more harm than good.
  3. While California law still allows employers to terminate (or not hire) for a positive marijuana test – be careful – if the drug is taken for a disability, the applicant/employee could assert a disability claim.  Do you want to be the test case?  Most employers do not.
  4. Do not assume your paystubs are compliant; paystub class actions are here to stay so audit them in each jurisdiction.
  5. When negotiating vendor agreements (an issue I have blogged about before), add a provision about ACA compliance and make the vendor take full responsibility for it.  Plus, specify that you are not joint employers, and the vendor will indemnify you for any assertions of joint employment status.
  6. Scrutinize your background check vendor, and carefully weigh the risks of getting the process wrong versus the risk of a negligent hiring claim.  Some jobs and industries warrant (or require) background checks, but many do not.
  7. Do not assume that pay equity exists just because employees with the same job title are in the same “salary band.”  If all women are at the bottom of the band, then you will need to justify why or rectify.  Moreover, the rationale that the men were better negotiators upon hire is not a viable defense to a pay equity claim.
  8. Be careful before you offer to pay a departing employee’s Cobra as part of a separation agreement; you could inadvertently mess up their ability to get coverage on the exchange.
  9. When hiring part-timers (who may not work enough hours to get health coverage), specify in the offer letter that they will be working “variable hours.”
  10. While documentation of performance deficiencies is still critical to defending claims, often it makes sense to move people out quickly and pre-empt a retaliation claim; as a presenter put it “be slow to hire but quick to fire.”

The new recruits step off the bus and, for the first time, come face to face with their drill sergeant, Gunnery Sergeant Hartman (played by R. Lee Ermey).  He asks one of the fresh faced recruits where he’s from and the recruit replies: "Texas."  Sgt. Hartman, expressing disbelief, says: "Only steers and queers come from Texas." 

That homophobic slur didn’t seem terribly out of place in a scene depicting life in a Viet Nam-era marine boot camp from Stanley Kubrick’s Full Metal Jacket .  But when a Costco manager made the same comment, it resulted in a recovery of nearly $1 million, which was upheld last month on appeal (Valera v. Costco Wholesale Corp.).  By itself, the comment probably wasn’t sufficiently severe or pervasive to support a harassment claim.  But after Juan Valera, a gay HIV-positive photo lab manager, asked Costco to protect him from the warehouse supervisor who made the comment, Costco demoted him.  Costco said the demotion had nothing to do with the complaint.  Valera said it was retaliatory.  A jury sided with Valera and awarded him over $422,000 in damages.  The court then awarded an additional $471,000 in attorneys’ fees.

On appeal, the issue was not whether the conduct constituted actionable harassment.  To support a retaliation claim, Valera would only need to show that he had a good faith belief that the conduct he complained of was unlawful.  The appellate court decided that it had no basis to disturb the jury’s credibility determination as to that issue.  I have no idea what R. Lee Ermey got paid for saying the line in the movie.  But I bet it was nowhere near what Juan Valero got paid to hear it at work.