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Goldman & Ehrlich
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Over 25 years of employment law experience in Chicago
Over 25 years of employment law experience in Chicago

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NON-COMPETITION CLAUSES - MAKE NO ASSUMPTIONS

By Duane Morris LLP - DuaneMorris3
The enforceability of non-competition clauses depends on a number of factors. Non-competition clauses are viewed in the context of anti-trust laws as a restraint of trade and disfavored. Consequently, the entity seeking to enforce a non-compete must be able to prove a legitimate business reason for the non-compete. A number of states flat out prohibit non-competition agreements, while other states enforce non-competition agreements on a case by case basis. In some states where non-compete provisions that restrict the physician’s right to practice medicine are considered void and not enforceable as a matter of law, employers may be able to sue the departing physician for monetary damages suffered because of the competition.
In states where non-competition clauses are permitted, the non-competition agreement must be supported by consideration or compensation and must be reasonable in scope. Scope refers to the length of time that the employee is prohibited from competing and the geographic radius of the non-compete.
With respect to the term of the non-competition clause, as a general rule, if the restricted time frame is two years or less after termination of the contract, the time restriction will likely be considered “reasonable.” However, state laws vary on whether time restraints in excess of two years are enforceable. The shorter the term of the non-compete, the more likely it will be enforceable. Because non-competes are reviewed by courts on a case by case basis and take into consideration the specific facts and circumstances pertinent to the non-compete, even in a state where non-competes are considered enforceable, there is no guarantee that a court will enforce the non-compete.
The enforceability of the geographical scope of a non-compete will vary substantially depending on location. Urban areas will have a different enforceable geographic scope than rural areas. The reasonableness of geographic scope may also vary depending on the physician’s specialty.
Courts will also consider patient needs in determining whether a non-compete is enforceable. A non-compete clause which prohibits a health care provider from continuing to provide care for a patient, no matter where the care will be provided, will likely be considered unenforceable as unjustly burdensome to the patient. Courts may also take into consideration the physician’s specialty and the ability of patients to receive care from other physicians in that same specialty, when determining the enforceability of a non-compete.
Non-competes relating to practice acquisition are considered generally more enforceable than non-competes relating solely to employment contracts. When an entity pays to acquire a physician practice, the physician practice should assume that the acquiring entity will vigorously seek to enforce the non-compete.
Litigating the enforceability of a non-competition clause is expensive, very time consuming and the outcome of the litigation is an uncertainty. Often litigation extends beyond the term of the non-compete.
In addition to the legal considerations associated with non-competition clauses, there are patient and public relation implications that merit consideration. Some physicians have circumvented non-compete provisions by taking their cause to the public.
When considering a non-compete either as an employer or employee or when selling or acquiring a medical practice, the parties need to consult legal counsel and also understand that there are no guarantees that any non-competition clause will be enforceable in its entirety or at all and there are no guarantees that a non-competition clause will be considered unenforceable. Never enter into a contract with the assumption that the non-compete clause is unenforceable and never assume that a non-competition clause will be enforceable. When seeking to enforce a non-compete, make the non-compete as least restrictive as possible to protect a legitimate business interest and document that legitimate business interest.

TRANSGENDER RIGHTS IN THE WORKPLACE

By Patrick Walshe Philip Lee

As published in the Sunday Business Post, Sunday 4th November 2018. The topic of transgender rights and equality has come to prominence in recent years and the latest decision of the Workplace Relations Commission on the subject, handed down in last month, is the perfect example of this.
This case involved an equality claim in which a transgender man visited a barbershop for a haircut, only to be told by an employee barber that they “don’t cut ladies hair”. The comments were made in front of a number of customers, causing distress to the complainant who left the premises. He subsequently initiated an equality claim in the WRC resulting in an award of €5,000. The WRC adjudicator commented that “the complainant was treated differently, because he was transgender when he was refused a haircut by the respondent. This amounts to discrimination on the grounds of gender.”
The case is a classic example of how careless, if not discriminatory, treatment can result in financial loss and, perhaps more significantly, negative publicity for a business. It’s a clear demonstration of what not to do in a situation like this one and there are valuable lessons to be learned for employers.
While we haven’t yet seen a significant number of claims involving members of the transgender community in the workplace, there is no doubt at all that the same principles will apply.
According to the Transgender Equality Network Ireland an estimated 1% of the population will experience some form of gender variance. This equates to roughly 45,000 people in Ireland. A survey by the Transgender Equality Network Ireland in 2017 found that almost half of all transgender employees in Ireland conceal their identity from employers and co-workers, as they anticipate that they will experience discrimination.
The issue of transgender discrimination has been considered by the courts and tribunals sporadically. The first such claim was heard in 2011 and it remains the most significant decision to date. In that case, a transgender woman was awarded €35,000 and, again, the case appears to be a textbook demonstration of how not to deal with these issues: the employee was asked to conduct certain work on behalf of the company in her former male identity, was prohibited from using the female restrooms and eventually was required to work from home due to a “lack of office space”. The manner in which she had been treatment clearly influenced the size of the award.
Irish employment law does not deal with the question of gender identity specifically – there is no piece of legislation, for example, addressing the rights of individuals in transition. However, remedies are still available for a transgender employee who is the subject of adverse treatment in the workplace as a consequence of a change in gender identity.
Most importantly, equality law allows an employee to seek redress from the Workplace Relations Commission in circumstances where they are the subject of discrimination under one of the protected grounds.
A transitioning employee, to take one example, could argue that they had been discriminated against under the gender ground and could certainly bring a claim. This is the approach taken in the most recent case, involving a barbershop. Equally, discrimination on the basis of sexuality is prohibited.
There is therefore probably no need to explicitly mention transgendered individuals in legislation – the protections already available likely encompass them (something that is demonstrated in both of the cases referred to above).
Separately, an employee has an unquestioned right to a safe place of work – and that definition is broad enough to encompass a workplace that is safe from harassment. Therefore an employee who is the subject of derogatory treatment as a consequence of expressing his or her preferred gender can complain to their employer and seek remedial action. If a stubborn employer either refuses to engage (or, perhaps more likely, takes a laissez-faire approach to these issues), that employee could in theory commence proceedings.
All in all, it’s in an employer’s interest to be aware of these principles and ensure that their business is flexible enough to accommodate transgender employees in an understanding way. We need to see more reported decisions to flesh out the core principles but it’s highly likely that a transgendered employee who has been the subject of discriminatory treatment will receive a sympathetic response from the WRC and the courts.

SEXUAL HARASSMENT AND NAIVE INACTIVITY

By Sexual harassment and naive inactivity
Public attention surrounding movements such as #metoo and #timesup has shone a light on sexual harassment in the workplace and placed emphasis on damage limitation, consequences, preparedness and reactivity
The past half century has seen positive developments regarding women’s working rights globally, aided by policy change, media campaigns and public movements, and an overall shift in the perception of working women. However, statistics show that sexual harassment against women, which permeates the lives of many women around the world, is still a pervasive threat in the workplace.
A survey by the Fundamental Rights Agency in 2014 found that more than half of all women living in the EU have experienced sexual harassment at least once since the age of 15.
In Spain, a Metroscopia survey has suggested that 56 per cent of respondents believe society does not take sexual harassment prevention seriously. Almost a third of all women surveyed reported feeling sexually harassed at least once in their lifetime (a figure that rises to 47 per cent among women in the 18-34-age bracket) and, perhaps even more worryingly, it’s been suggested that there is no data around sexual harassment in the workplace.
Just recently, McDonald’s workers in the US went on strike over the perceived lack of action around workplace sexual harassment claims – after women in nine US cities filed sexual harassment claims against McDonald’s with the US Equal Employment Opportunity Commission. The overwhelming volume of sexual harassment allegations that have come to light over the last year specifically, arising everywhere from Hollywood to fast food chains, have been shocking, but to many, unfortunately, are nothing new.
However, despite heightened public attention, ‘sexual harassment in the workplace’ was chosen by a mere 2 per cent of total respondents in the Ius Laboris forces for change research as one of the most concerning issues in the past year.
It could be pertinent to question whether this apparent lack of concern is due to a misunderstanding as to what constitutes sexual harassment. The Council of Europe on preventing and combatting violence against women – known as the Istanbul Convention, defines sexual harassment in Article 40 as ‘any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person.’ In the US, sexual harassment is deemed a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, applying to employers with 15 or more employees, including state and local governments.
In the EU, the issue was initially addressed in 1991, when the EU adopted a (non-binding) recommendation on the dignity of men and women at work and a Code of Practice on measures to combat sexual harassment. The first legally binding legislation defining sexual harassment was adopted in 2002 and the most recent EU law is a directive from 2006. However, though the laws are consistent, approaches differ across EU member states.
For example, sexual harassment is a criminal offence in France, defined by repeatedly imposing behaviours or discussions with a sexual connotation on a person that offend human dignity or create an intimidating, hostile or offensive situation for the individual. In Belgium, there is comprehensive legislation around prevention of psychosocial risks at work (including stress, conflicts and burnout) and this comes under the law on wellbeing at work, which covers safety and security and employee health. Italian law mirrors the EU definition and defines sexual harassment as a form of discrimination and, in particular, as unwanted conduct of a sexual nature expressed in any way which violates, or is intended to violate, the dignity of an employee or which creates an intimidating, hostile, degrading, humiliating or offensive working environment. Italian employers are liable to ensure the health and safety of all employees under Article 2087 of the Italian Civil Code.
“Both victims and witnesses often fear reprisal and so the behaviour goes unreported” 
However, the research findings suggest there is a solid understanding of this issue, with 86 per cent of total respondents somewhat or completely agreeing that ‘there is a clear, defined understanding of what constitutes sexual harassment within (their) business’. Research into the current or planned actions businesses have in place to address, mitigate or limit sexual harassment seems, however, to indicate a surprising level of inactivity. In fact, as much as 42 per cent of total respondents have made no changes in response to rising media attention around sexual harassment issues – potentially leaving their businesses exposed.
So, what is the problem?
According to a 2017 study by the UCLA’s World Policy Analysis Center in the United States, about 235 million women in more than a third of the world’s countries are not currently covered by laws against sexual harassment at work.
In the UK, a 2018 House of Commons Women and Equalities Committee report agreed that sexual harassment in the workplace is ‘widespread and commonplace’ but admitted there is currently little incentive for employers and regulators to take robust action to tackle and prevent unwanted sexual behaviour in the workplace.
The report suggests that focus on protecting data may have diverted attention away from tackling sexual harassment and that some non-disclosure agreements are used to prevent or dissuade victims from reporting sexual harassment to the police, regulators or other appropriate bodies. The House of Commons report also cited a shocking lack of awareness at the most senior levels of employers about the extent of sexual harassment in their organisations. This, the report argues, could be to do with the underrepresentation of women in leadership positions.
Sexual harassment in the workplace has continued because, simply, says Andrew Weir, employer services manager at Moorepay, “it has continued to be permitted. Both victims and witnesses often fear reprisal and so the behaviour goes unreported. Sadly, I have advised a number of firms where HR departments have earned the reputation of protecting the company’s position over the years and so victims felt unable to complain until after they had left. This can result in an employment tribunal claim when of course HR’s role should be to protect the interests of the company and, to the victim and witnesses, often still employed, it reinforces the belief.”


The Ius Laboris research suggests that ‘plans’ to address sexual harassment issues may be legacy – therefore, the reason why those who have, in the past year, taken no action to address sexual harassment in the workplace, could be because they already have some plans in place. However, with all legacy plans, it’s pertinent to question whether company policies or practices are truly up to date and, indeed, adequately responsive for the modern workplace.
According to the research, North America seems to be leading the way in terms of preparedness of dealing with the issue of sexual harassment. Just 28 per cent have made no changes in North America, compared with 54 per cent of those in Europe.
On a scale of 1 to 7 (where 7 indicates completely prepared with a comprehensive plan in place) North American respondents ranked their level of preparedness to deal with ‘sexual harassment’ on average as a point 5. Preparedness levels to deal with discrimination generally was ranked at a level 5 by both total respondents and North American respondents specifically – indicating that of all the issues, this is one they are most ready to address and have planned for. Indeed, 53 per cent in North America have invested in employee training surrounding sexual harassment in the workplace and 44 per cent have updated their HR policies accordingly. This commitment is greater than in Europe, with just 23 per cent updating HR policies and a mere 18 per cent investing in employee training. Again, this could mean that European-based firms have already invested in or carried out these actions, but in the current climate, the need to stay up to date and fully reactive is more critical than ever.
“Naive inactivity towards sexual harassment cannot be an option if a safe workplace environment is to be adopted” 
Yvonne Frederiksen, partner of Ius Laboris Danish firm, Norrbom Vinding, says: “One of the reasons may be that – except perhaps in the UK – European employers have up and until now been faced with relatively few sexual harassment claims, so most European employers do not consider themselves at high risk of being hit with a claim. In addition, cultural workplace norms vary significantly across Europe, so even though most countries have implemented the same EU definition of sexual harassment, how it is interpreted can differ significantly. For instance, what is considered sexual harassment in the workplace in the UK might not be considered as such in Italy.”
It’s not a case of companies not doing enough, says Aliya Vigor-Robertson, co-founder of JourneyHR, “It’s more about how they can improve the way they respond and, even more importantly, avoid incidents like these from happening in the first place.”
Andrew Weir says, “Companies of all sizes must have a robust and consistent policy in place and all employees must sign as having read and understood any such policy. The onus falls on the employers to ensure that employees are aware of the repercussions of their actions and their options in any situation.”
On top of this, says Weir, it’s essential to build a culture where employees feel supported. He suggests annual equality and diversity training, supported by HR departments/company directors actively promoting the values within the training throughout the year.
“By creating a clear code of conduct for employees to adhere to from the outset, an environment of respect and open communication is developed and nurtured,” agrees Kirsten Cluer, HR consultant and owner of Cluer HR. “It will also help to create a sense of camaraderie between employees, meaning that should an employee exhibit unacceptable behaviour, more people are likely to speak out against it.” She adds, “Naive inactivity towards sexual harassment cannot be an option if a safe workplace environment is to be adopted.”

#NOTHERE: 5 STEPS TO PREVENT HARASSMENT IN THE WORKPLACE IN WAKE OF
THE #METOO MOVEMENT


By Tammy R. Bennett and Faith C. Whittaker Dinsmore & Shohl LLP -
One year later, the #MeToo movement has caused a seismic cultural shift in American society and in the workplace. It continues to gain momentum and attracts wide-sweeping media coverage keeping the issue of sexual misconduct against women at the forefront of our national dialogue. For its efforts, the movement is poised to strengthen the enforcement of existing laws, spur enactment of new regulations, and most notably, to fundamentally change how women and men interact in the workplace.
Recent EEOC activity is evidence of the movement’s success. In the year since the movement began, the EEOC filed 41 lawsuits alleging sexual harassment, which is a 12% increase over fiscal year 2017. Similarly, it recovered $70 million from sexual harassment claims compared to $47.5 million in fiscal year 2017. The EEOC has made it clear that preventing sexual harassment claims is a high priority and is in the process of revising its guidance on the subject.
While #MeToo focuses on high profile claims against executives, celebrities, and politicians, the Time’s Up initiative has expanded the activism to low wage and blue collar workers. Since its inception, its legal defense fund has provided nearly $22 million dollars to cover legal costs for workers to pursue sexual harassment lawsuits against their employers.
What can employers do to mitigate the risk of sexual harassment claims or of unwittingly cultivating a culture of harassment in their workplace? The following are five steps employers should take to prevent harassment and send a clear message: #NotHere.
1. Mandate a workplace culture of respect.
In addition to merely expressing their commitment to a harassment-free workplace, employers must take intentional actions to create and maintain a respectful work environment. To create and maintain a culture of respect, a company must know its core values and purpose. From there, employers should recruit, hire, retain and make decisions with those core values and purpose in mind. Management must bridge any gap between the levels by having clear expectations, effective communication, and a respectful and professional attitude. If employers continuously allow improper behavior and fail to take action, they can expect such behavior to continue to permeate the workplace. Employers must take a stance against disrespectful and inappropriate behavior and mandate that employees treat each other professionally and with respect.
2. Leadership must lead by example.
If the leadership of the company does not believe in a workplace culture of respect, employees will not either. The company’s executives and managers must lead by example. Leaders of an organization must make preventing harassment a priority and clearly voice that it will not be tolerated. Leadership actions can be symbolic and send a strong message to employees. The bottom line is that leaders want employees who are inspired to come to work, which results in a happy, productive workplace. If employees are experiencing harassment, it will significantly impede that outcome.
3. Have a receptive channel to launch complaints.
Employers must provide multiple ways in which employees may voice any concerns or complaints. Whether it is through a hotline, email, human resources or management, employees must have multiple places to go to present any complaint. Importantly, employees must be able to avoid complaining to the alleged harasser. Additionally, employees must be able to raise concerns without fear of reprisal and feel that they have an open channel of communication with someone in the company who can receive their complaint and effectively take action.
Employers should ensure that employees understand the complaint process and know of all avenues through which they may raise concerns. Employers should not simply provide employees with a 50-page handbook at the start of employment with the complaint procedure buried within. Instead, employers need to adequately provide the information to employees periodically and in a variety of ways.
4. Managers and employees must be trained.
Employees need to be generally familiar with the company policy against harassment and discrimination and the company’s stance against improper and disrespectful conduct. Employees should be trained on behaviors that foster respect and civility in the workplace, behaviors that are not consistent with the company’s expectations, the complaint process and where to go if they experience harassment directly, or as a witness. Employees must understand that the company will promptly investigate and resolve any issues without fear of reprisal for bringing the complaint.
Managers must know the company complaint process and the importance of anti-retaliation in responding to complaints. Managers should be trained in skills for addressing improper behavior, de-escalating conflict, and handling harassment complaints. Individuals within the company who are responsible for conducting investigations should receive skills-based training on how to effectively investigate harassment and other workplace concerns. Significantly, managers must be able to effectively end improper conduct and cultivate a culture of respect and professional behavior. Managers should also learn how to avoid liability and the legal ramifications of harassment in the workplace.
5. Employers must promptly and effectively respond to complaints.
Employers must promptly respond to harassment allegations by conducting an investigation and resolving any issues. Not only can this step provide employers with an important legal defense should litigation ensue, but it is a critical step in preventing any further issues internally. As soon as possible and without unreasonable delay, the employer needs to respond to the complainant to let him/her know that the employer will be looking into the complaint.
Following the initial communication, the appropriate person needs to conduct a thorough investigation and gather the necessary information and documentation. The investigator must interview the complainant, the accused and any witnesses. After collecting the pertinent information, the employer must take action to resolve any issues and close the investigation. It is important that employers keep an open dialogue with the complainant and communicate the status of the investigation to the extent possible given the circumstances. The complainant should not feel that the employer failed to act in response to his/her complaint.
In the wake of the #MeToo movement, employers must send a clear message: #NotHere. Employers must take a stance against harassment and create a culture of respect. By taking proactive measures with respect to training and policies, it will help prevent harassment from permeating the workplace.

ILLINOIS EXPANDS PROTECTIONS FOR NURSING MOTHERS


By Brian E. Spang, Michelle G. Marks and Erica McKinney Epstein Becker Green
Illinois recently amended the Illinois Nursing Mothers in the Workplace Act (“Act”) to:
eliminate the previous requirement that lactation breaks run concurrent to breaks already provided by an employer,
prohibit employers from reducing pay during lactation breaks, and
require employers to provide break time for mothers to nurse.
The changes appear to require employers to provide paid breaks for lactation purposes. The Act’s original language allowed employers to provide “reasonable unpaid break time” for mothers to express milk. The amendments eliminate the word “unpaid” and prohibit employers from reducing “an employee’s compensation for time used for the purpose of expressing milk or nursing a baby.” Thus, although not clearly worded, the statute now appears to mandate paid lactation breaks.
Additionally, the amendments appear to add a requirement that employers provide time for mothers to nurse an infant. Specifically, the amendments prohibit employers from reducing compensation for time used for expressing milk “or nursing a baby.” The Act’s original language only required breaks for employees to “express milk for her infant child.” Requiring break time for nursing a baby is notable because the Act does not require employers to provide a place for mothers to nurse. The Act requires employers to provide a “room or other location, in close proximity to the work area, other than a toilet stall, where an employee . . . can express her milk in privacy,” but it does not contain any similar requirement for nursing a baby. Lawmakers have not provided guidance interpreting the amendments. Therefore, employers should nevertheless read the Act conservatively and provide a private space for mothers to nurse a baby, as well as to express milk.
The amendments also clarify that employers must provide lactation breaks for up to one year after the child’s birth, and further provide that an employer is only exempt from complying if providing the breaks would create “an undue hardship,” as defined by the Illinois Human Rights Act (“IHRA”). The IHRA defines “undue hardship” as actions that would be “prohibitively expensive or disruptive” when considered in light of several factors. The factors to consider include the cost of the accommodation needed, the overall financial resources of the facility or facilities involved in the provision of the accommodation, the overall financial resources of the employer, and the type of operation of the employer.
What Employers Should Do Now
All employers governed by the Act (i.e., companies employing more than five people) should do the following:
Review and revise, as necessary, company policies to provide nursing mothers reasonable paid break time for lactation purposes and a convenient location to privately nurse a baby.
Inform your current staff about—and modify any new hire paper work, policies, and procedures to include—your company’s policy for nursing mothers.
Budget appropriately to account for the additional pay that may be required to provide paid break time for nursing mothers.

MINIMIZING RISK IN THE "NEW" SEXUAL HARASSMENT ENVIRONMENT


By Sunny Mayhall West and Melissa M. Shirley Breazeale Sachse & Wilson LLP
Last week, numbers were released which indicate sexual harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) increased more than twelve percent as of September 30, 2018. Since January 1, the EEOC has filed 41 sexual harassment lawsuits, a fifty percent increase from last year. In July 2018, the EEOC filed seven sexual harassment lawsuits - six of the seven involved female employees; five of the seven involved purported harassment by a supervisor, manager or owner; and two of the seven alleged failure to distribute the employer’s sexual harassment policy and/or properly train employees on reporting procedures.
In January, we presented the evolving considerations related to sexual harassment amidst the #MeToo movement. Due to the intensified focus on the issue, we explained the importance of reexamining your personnel interaction policies. The numbers above indicate the issue persists in the employment context. Recent cases highlight the importance of an effective response to harassment claims. Such response can often negate employer liability.
For example, in Tucker v. United Parcel Serv., Inc., 734 Fed. Appx. 937 (5th Cir. 2018), the plaintiff claimed her subordinate sexually harassed her for approximately two years. The most severe incident occurred when the “harasser” allegedly touched the plaintiff in an inappropriate fashion. The plaintiff reported the incident to her manager. The manager immediately had the plaintiff write a statement. The following day, the plaintiff initiated a complaint with the UPS Compliance Line. She expressed concerns about whether her subordinate would be present at work and that she did not want to see him. UPS commenced its investigation and the subordinate was suspended pending the outcome.
Because UPS could not determine whether the subordinate’s conduct was intentional (the subordinate claimed he accidently bumped into the plaintiff), after a two week suspension, he was permitted to return to work. He was counseled on workplace policies and on professionalism and harassment. He was prohibited from going into places where the plaintiff was stationed. Despite being separated into different areas of the worksite, the plaintiff still complained that she felt intimidated by the subordinate. UPS provided someone to walk the plaintiff to her car and offered her the opportunity to transfer to another facility only ten minutes away. The plaintiff declined and eventually resigned because she said UPS failed to permanently remove the subordinate from her place of employment.
To establish a case of a hostile work environment based on sexual harassment, the plaintiff had to show that (1) she belonged to a protected class; (2) was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) UPS knew or should have known of the harassment and failed to take remedial action. Harassment must be “severe or pervasive” enough to create an abusive working environment in order for the plaintiff to recover.
The United States Court of Appeals for the Fifth Circuit pretermitted the issue of whether the subordinate’s harassment was legally sufficient, stating: “[E]ven assuming without deciding that the alleged harassment was sufficiently severe …, we hold that UPS took sufficient remedial action to avoid liability under Title VII … because it immediately took action to protect Tucker while the investigation was pending, and then following the investigation it moved Tucker to a separate work area, instructed McCaleb not to enter that work area, counseled McCaleb on its sexual harassment and professionalism policies, provided an escort to help Tucker feel safer, and the sexual harassment ceased.”
The UPS case demonstrates the importance of a speedy, thorough response. In today’s climate, employers should have a plan in place for responding to harassment allegations. There is no time to craft the response procedures once a complaint is lodged. When developing your process, consider the best person to conduct the investigation; make sure he or she identifies the relevant policies and procedures and follows them; put in place a mechanism for saving electronic or audio/visual records (including text messages), which can provide insight into the interactions between the complainant and the alleged harasser; consider options for separating the employees during and after the investigation; be sure the investigation is as thorough as the complaint warrants; and take meaningful action. The court viewed UPS’s response favorably due to its promptness, its regular communications with the plaintiff, and its efforts to alleviate her concerns along the way. A well-planned response not only positively positions the employer in the event a lawsuit is filed, but it also communicates a corporate commitment to an environment where employees feel comfortable and encouraged to bring employment issues to the forefront.

EEOC REPORT PROFILES ITS “VIGOROUS” EFFORTS TO COMBAT WORKPLACE HARASSMENT

By J. Marshall Horton and Ryan M. Bates Hunton Andrews Kurth LLP -
The EEOC recently released a report highlighting the Commission’s efforts to combat sexual harassment in the past year. The report, which includes preliminary data for the fiscal year ending on September 30, 2018, illustrates that the Commission has been, in the EEOC’s words, “vigorously enforcing the law” in the wake of the #MeToo movement.
The report’s most telling statistics include the following:
The EEOC filed 66 harassment lawsuits, 41 of which included allegations of sexual harassment;
Sexual harassment charges increased 12%;
Reasonable cause findings in harassment cases increased 23%;
The EEOC recovered nearly $70 million from employers through litigation and administrative enforcement in FY 2018, up from $47.5 million the previous year.
The current climate, and the EEOC’s recent statistics, reinforce employers’ need to be proactive in combating workplace harassment. When reviewing internal policies and procedures, employers should be mindful of the EEOC’s recommendations set forth in a recent report by the Commission’s “Select Task Force on the Study of Harassment in the Workplace.” Key recommendations from this report include the following:
Workplace Leadership and Accountability:
Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
Where harassment is found to have occurred, discipline must be prompt, proportionate to the severity of the infraction, consistent, and does not give, or create the appearance of, undue favor to any particular employee.
Harassment Prevention Policies and Procedures:
Employers should ensure that their harassment reporting protocol is communicated frequently to employees in a variety of forms and methods.
Employers should be alert for retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
Anti-Harassment Training:
Employers should offer compliance trainings on a regular basis and in a universal manner that include the content and follow the principles described in the EEOC task force’s report.
Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment allegations.
Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.
Employers should fully expect the EEOC to continue vigorously addressing workplace harassment. However, following the EEOC’s recommendations and other industry best practices can help employers ensure that they are protected to the greatest extent possible.

HALTING SEXUAL HARASSMENT: 7 RULES OF THE ROAD

By Jennifer Gefsky and Ian Carleton Schaefer Epstein Becker Green -
Learn the “7 Rules of the Road” for halting sexual harassment in the workplace, presented by attorneys Jennifer Gefsky and Ian Carleton Schaefer:
Rule #1: Don’t Be Creepy
Rule #2: Minimize Touching
Rule #3: It’s Not About You - It’s About Me
Rule #4: No Dreams and Definitely No Beds
Rule #5: One Free Compliment
Rule #6: Keep Your Clothes On
Rule #7: Apply the Rules Equally
Click here to view the video
This video was prepared as part of Halting Harassment: Rules of the Road for a Respectful and Inclusive Workplace, an interactive e-learning solution to newly enacted mandatory training requirements created by law firm Epstein Becker Green. Halting Harassment can help employers, in jurisdictions with such requirements and as well as those without them, encourage behaviors that foster a work environment free from discrimination and harassment.
Harassment in the workplace is a very serious issue, and forward-looking employers engage employees in respectful, inclusive conversations on preventing harassment in the workplace.

IN THE #METOO ERA, WHY RETALIATION IS THE SCARIEST WORD FOR EMPLOYERS

By Sara H. Jodka Dickinson Wright -
With the issue of appropriate vs. inappropriate sexual conduct continuing to be the hot button topic, it is important to understand there is another related issue that remains front and center yet it remains silent, and that issue is retaliation.
In terms of workplace sexual harassment as a claim in its own right, a brief refresher is in order. When it comes to harassment in the workplace, there is a distinction regarding employer liability depending on who the alleged harasser is. Under the law, specifically the Faragher/Ellerth standard, employers are vicariously liable for supervisory harassment when the alleged victim experiences a tangible adverse employment action, such as termination, demotion or other changes to the terms or conditions of employment. However, if a supervisor harasses an employee without taking an adverse employment action, i.e., by creating a hostile work environment, the employer is still subject to vicarious liability for the supervisor’s conduct but may raise an affirmative defense to liability. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In accordance with the Faragher/Ellerth affirmative defense, the employer must prove by a preponderance of the evidence: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the alleged victim unreasonably failed to take advantage of preventive or corrective opportunities the employer provided.
With respect to co-worker on co-worker harassment, an employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. This means that in a coworker harassment case, the employer must have reason to be aware of the harassing conduct and fail to take appropriate actions to remedy it before there is liability.
But what about retaliation?
The foregoing analysis is only applicable in the harassment context, and one thing employers and supervisors oftentimes forget or do not necessarily comprehend is that the federal and state harassment and discrimination statutes have anti-retaliation provisions that expressly prohibit retaliation against anyone who has opposed harassment or discrimination, which would include anyone reporting it and anyone participating in any process, including an investigation, regarding such a report. These are the opposition and participation clauses of the federal and state retaliation statutes respectively.
But, exactly how often do employers ignore or simply fail to understand the retaliation prohibitions? Well, in terms of charge statistics, the Equal Employment Opportunity Commission (EEOC) reported a consistent incline in retaliation suits from 1997 to 2017. As of 2017, retaliation claims were 48.8% of the EEOC’s overall total charges, whereas sex-related claims were much lower and amounted to 30.4% of the agency’s overall total charges.
Not only are retaliation charges consistently on the rise, but they pose more liability and risk for employers due to the proof required for an employee to prevail, which is lower than that required for a viable sexual harassment or sex/gender discrimination.
Retaliation claims typically have three steps. First, the employee must establish a prima facie case of retaliation by proving, by a preponderance of the evidence: (1) that the employee engaged in protected conduct, i.e., filing a complaint or participating in a related process; (2) that the employer knew of the employee’s protected activity; (3) the employer subsequently took action adverse to the employee; and (4) there must be a causal connection between the protected activity engaged in by the employee and the adverse action by the employer. Once the employee meets this step, the burden then shifts to the employer to articulate a legitimate non-retaliatory reason for taking the alleged adverse action against the employee. If the employer is able to do this, the burden shifts back to the employee one more time to prove that the employer’s so-called non-retaliatory reasons were a pretext for illegal retaliation or, in other words, bogus.
The key distinction between discrimination and harassment claims, as opposed to retaliation claims, is the “adverse action” the employee must suffer to be actionable. In harassment and discrimination claims, the adverse action must be an “employment” action, i.e., a demotion, reduction in pay, reduction in duties, etc. In the retaliation context, the adverse action does not have to be related to “employment”; rather, it just needs to be adverse or negative enough to the employee that it would chill the reporting, i.e., enough to keep the employee from speaking up. Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53, 67 (June 22, 2006). As the Court further explained to bring an actionable retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. As such, retaliation claims are far broader and many employers, and their employees responsible for overseeing employees, are unaware of what exactly is prohibited. Even though Burlington Northern has been the law of land for years, employers consistently miss the retaliation prohibition piece of the law as demonstrated by the continued rise in retaliation claims.
In the era of #MeToo and #TimesUP, however, more and more employees are coming forward with their claims of discrimination and harassment and, as such, it is imperative that employers, and those managers and supervisors who act on the employer’s behalf, understand the magnitude of retaliation.
Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342 (M.D. Tenn. February 6, 2013) provides a couple of examples as to how retaliation can materialize, at least enough for an employee to force an employer into litigation. In that case, a number of employees filed a lawsuit against the employer. In response, a couple of management employees had their own way of responding to the lawsuit. One took to her blog and insinuated that one of the plaintiff-employees was a thief. Another updated his Facebook status while in the same room with one of the plaintiff-employees asking that he “not kill the employee that is suing him.” Both employee-plaintiffs amended their complaints and added retaliation claims and the claims proceeded beyond the motion to amend stage, beyond the motion for summary judgment stage, and ended up being issues for trial.
Another way retaliation plays out is when the reporting employee is isolated or excluded after complaining. When responding to a harassment complaint, one of the first thing counsel advises the employer to do is separate the employee and the alleged harasser while an investigation can be done. This separation, however, can become an issue when the separation causes the employee harm in terms of lost work, lost revenue, isolation, exclusion, etc. Similarly, after an investigation is completed and remediation efforts have taken place, the employer’s job is not over. The employer must ensure that the reporting employee is not subjected to retaliation in the form of isolation or exclusion because the employee raised an issue. We have seen a hint of this issue in the news recently as more and more people have indicated they are hesitant to be around a woman for fear of being the subject of a claim. Detaching and withdrawing from a reporting employee could constitute retaliation given the right set of circumstances.
In one case that resolved before suit, an employee reported gender disparity/discrimination in the workplace. The employer’s response was to instruct the alleged harassing employee to stay away from the reporting employee. The problem was that the person charged with discrimination held an extreme position of power and essentially used that influence to blackball the reporting employee. The employee saw work dwindle, opportunities removed, and eventually became so isolated and excluded the employee resigned. Those actions, because they were taken in response to the employee’s protected complaint, were at least arguably retaliatory and, thus, actionable.
As you can see from the examples above, retaliation can be slight, but if a reasonable person would consider it adverse, a retaliation claim may hold water and create liability for the employer. And in states like Ohio and others where a manager/supervisor can be personally liable for their retaliatory conduct, the manager/supervisor may be additionally or individually charged with retaliation.
It is worth noting that, even if the underlying reports of sexual harassment are ultimately determined to be deemed “unsubstantiated” to the employer’s satisfaction, it may still be retaliatory to take action against an employee for making the report. This fact pattern played out in Carrethers v. Speer, Case No. 16-6482 (6th Cir. June 23, 2017), wherein the Sixth Circuit upheld the trial court’s denial of an employer’s motion to dismiss an employee’s retaliation claims based on the employee’s claim that she was terminated in retaliation for complaining about sexual harassment.
Employer Takeaways
Gender harassment and discrimination claims are difficult enough without an employer complicating matters by retaliating or taking adverse action against the reporting employee or employees who participated in the investigation and may have said things negative to the employer’s interest. Conduct that might be considered retaliatory varies in every situation, which is another reason retaliation cases tend to get far along in the court system when brought.
Employers should ensure all employees are trained on what retaliation is and what it can look like. While it is certainly hard to treat someone the same after they have raised issues that may harm a company or another employee, the fact remains that employers are required to do just that. The law recognizes that people are retaliatory by nature. We do not like when others challenge our conduct. We do not like when people put our livelihood at issue. But the law requires that in the context of employment, employers and their employees fight their natural instincts and behave differently. Human nature is precisely the reason retaliation cases lead the pack for employment-related claims and why they will continue to do so in the future.

Medical Marijuana: Where are we now? What might the future hold?


By Graydon Head & Ritchey LLP
Employers in Ohio are entitled to a drug free workplace and the enforcement of a zero-tolerance policy. That does not make it easy, however, to control. To date, there is not a real-time test to indicate whether a person is “high” in the present tense, only to know if they have used in the past. And not all testing is equal. What will employers will do when trusted and valued employees and executives are known to have used marijuana legally? That is a tricky question and a moving target. For now, however, it is important to know that Ohio employers are protected, and need not tolerate even one ounce of marijuana in their workplace. Stated conversely, no Ohio citizen has the right to use legal medical marijuana and consider their employment secure.
As I predicted in my July, 2018 interview with Ohio Cannabusiness Magazine, however, the fight over legal marijuana use and the workplace is on. The full interview can be found here. Businesses in states with varying types of legal marijuana production and use laws are grappling with the regulation of the workplace. Couple the desire for a drug free workplace with the expansion of legal marijuana and extremely low unemployment, and the tension rises. No employer wants to terminate valued employees.
The states with legal marijuana laws are almost certainly going to see challenges, over and over again, until the states laws are in sync with one another, and collectively in sync with federal laws. This could literally take decades. Employers are caught in the middle of trying to do the right thing for safety, efficiency, insurability, and regulatory compliance, and also not discriminate. And the discrimination aspect varies so employers with facilities in multiple states confront different issues still. In Ohio, employers are less at risk because the statute, known as House Bill 523, explicitly denies an employee’s right to use legal cannabis against an employer’s policy, and explicitly cuts off all avenues for employees to seek redress if they feel discriminated against, are injured while using marijuana, or suffer any adverse employment action. Nationwide, however, statutes differ, and there are nine states where the worker’s right to use marijuana, legally under that state’s system, is protected activity.
Connecticut is one of those nine states. There, for example, a woman named Katelin Noffsinger, with a job offer in hand from a nursing home called Bride Brook, was honest about using medical marijuana in the evening to relieve lingering effects of an automobile accident. The employer rescinded the offer of employment after the required drug screen came back positive. Bride Brook’s rationale, oversimplified, was that because there are federal dollars and regulations at play in the nursing home industry, employing a person who uses a federally illegal substance can put funding at risk, etc. It makes sense, but not so fast, Connecticut has an anti-discrimination provision built into the marijuana legislation. The federal court ruled that the employer violated anti-discrimination provisions in Connecticut’s medical marijuana law. This is a first. The court ruled that the Drug Free Workplace Act, oft cited by employers for policies on drug testing, does not require testing, nor does it prohibit federal contractors from employing people using legal marijuana under a state’s authority.
Nationwide, however, there are only nine states in line with Connecticut’s protection of a citizen’s right to use legal marijuana. In the rest of the continental 50 states, employees are at risk for legal use of marijuana pursuant to state law. The issue promises to percolate nationally until the federal government either declassifies marijuana, or enforces the laws on the books today. Just as likely, split decisions from United States Circuits will eventually reach SCOTUS for an old fashioned 10th Amendment fight. The latter would be a different fight altogether.
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