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Halloween Office Party?  Avoid Horrific Lawsuits

Just a short note about office Halloween parties.  Pretty much everyone I know likes to party, including me.  So, I’m not writing this to be a party pooper or discourage partying in general.  However, as with other office holiday parties, Halloween parties in the office are very different to private holiday parties amongst friends.  Along with the usual caveats about serving alcohol to employees (don’t do it! or at least set real controls), here are some things to consider prior to holding an office Halloween party.

Offensive Costumes: Who invited Hitler?

Don’t assume your employees will exercise good judgment in picking their costumes.  Adolf Hitler, Ku Klux Klan, black face, scantily dressed characters, costumes making fun of employees specific protected characteristics (age, handicap, race, religion, etc.), should all be strictly prohibited.  And watch out for the cheeky Austin Powers costume.  He’s surely a walking sexual harassment lawsuit.  Who would wear such things, you ask?  Well, that’s the point.  You don’t want to find out at your office Halloween party.  I recognize that it’s difficult to specifically list all of the banned costumes, and that broad prohibitions on offensive costumes won’t provide clear guidance to your employees.  So what’s one to do?

Well, if you’re more risk tolerant than I am, you can do your best to give your employees notice of the type of costumes that are not permitted, then go ahead and have a great party (See! I told you I’m not a party pooper!).  Alternatively, you can have a particular theme to your Halloween party – such as Star Trek, Star Wars, kids’ cartoons, etc.  Add a general prohibition on body suits and revealing clothes, and go for it.  You can also have the party without costumes.  A Halloween party without costumes?! Yes.  Studies show that employees would still enjoy music, food, and not doing work.  I’m joking about the studies but have no doubt they would show what I say.    Of course, you can simply not have the party.

There in Spirit: Attendance Optional

As with other holiday parties, attendance at the office Halloween party should be optional. In addition, if attendance is mandatory, you must pay employees for their time, and you should reasonably accommodate the requests of employees who object to attending the party on religious grounds.

The End is Near

No, not YOUR end.  I mean the end of this post.  Sorry to fill your head with thoughts of scary lawsuits, but unlike the ghosts and ghouls of Halloween, employee lawsuits based on harassment and/or hostile environment are very real and can haunt your business for years.  See what I did there? Until next time, have a frighteningly good time.

Domestic Violence Awareness Month: Employment Law Protections for Victims

Domestic-Violence-Awareness

October is National Domestic Violence Awareness Month.  As a labor & employment law firm, Reid Kelly, P.C. writes this entry to raise awareness of some of the employment law protections afforded victims of domestic violence.

Domestic violence is a huge problem in our society.  It crosses all lines, including economic, political, cultural, and racial.  Some significant facts are that:

  • Every 9 seconds in the US a woman is assaulted or beaten.
  • Around the world, at least one in every three women has been beaten, coerced into sex or otherwise abused during her lifetime. Most often, the abuser is a member of her own family.
  • Domestic violence is the leading cause of injury to women—more than car accidents, muggings, and rapes combined.
  • Studies suggest that up to 10 million children witness some form of domestic violence annually.
  • Nearly 1 in 5 teenage girls who have been in a relationship said a boyfriend threatened violence or self-harm if presented with a breakup.
  • Every day in the US, more than three women are murdered by their husbands or boyfriends.
  • Ninety-two percent of women surveyed listed reducing domestic violence and sexual assault as their top concern.
  • Domestic violence victims lose nearly 8 million days of paid work per year in the US alone—the equivalent of 32,000 full-time jobs.
  • Based on reports from 10 countries, between 55 percent and 95 percent of women who had been physically abused by their partners had never contacted non-governmental organizations, shelters, or the police for help.
  • The costs of intimate partner violence in the US alone exceed $5.8 billion per year: $4.1 billion are for direct medical and health care services, while productivity losses account for nearly $1.8 billion.
  • Men who as children witnessed their parents’ domestic violence were twice as likely to abuse their own wives than sons of nonviolent parents.   http://domesticviolencestatistics.org/domestic-violence-statistics/

A typical domestic violence scenario involves the victim having to flee his/her home to escape life threatening abuse to themselves and/or their children.  In many cases, the victim is economically dependent on the batterer, making it that much harder for the victim to flee.  Given the disruption domestic violence brings to the lives of victims, it should come as no surprise that its effects often spill over into the workplace.  In the employment context, victims of domestic violence are often victimized twice.  Once by their batterer, and once more by an unsympathetic employer that terminates their employment.  This often happens because victims of domestic violence may need to take time off from work to get a restraining order, medical attention, or to get emergency housing situated.

Sadly, many employers see this time off as an abuse of their time and attendance policies, or view the victim as creating an acute safety issue at the workplace, fearing that the batterer may show up and become violent at the worksite.  Recognizing the unique circumstances facing victims of domestic violence, legislatures around the country have enacted laws specifically targeted at providing victims of domestic violence with employment protections.  These laws are designed to protect the jobs of the victims, and to provide them with the necessary time to get the medical, judicial, and housing assistance they need to enable them to flee their batterer and protect their lives and that of their children.

While this article focuses on the law in New York City, the following jurisdictions have similar laws providing employment protections for victims of domestic violence:  California, Colorado, Connecticut, District of Columbia, Florida, Miami-Dade County, Fla, Hawaii, Illinois, Kansas, Maine, New Mexico, New York, Westchester County, NY, North Carolina, Oregon, Philadelphia, Pa, Rhode Island, and Washington.

New York City has a Commission on Human Rights that is responsible for enforcing the New York City Human Rights Law (“NYCHRL” or the “Law”). The Law applies to employers with 4 or more employees, and prohibits discrimination in hiring and firing as well as work assignments, salary, benefits, promotions, performance evaluations, and discipline based upon race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, arrest or conviction record, marital status, or partnership status.  The Law also prohibits your employer from making statements, asking questions during interviews or circulating job announcements that suggest a preference for or prejudice against hiring individuals based on the groups listed above. The Law also applies to employment agencies and labor organizations.   See N.Y.C.  Admin. Code §8-107.

In 2001, the Law was amended to add status as a victim of domestic violence to the above list of protected classes with regard to employment.  The law was amended again in December 2003, protecting victims of domestic violence, sex offenses, and stalking in the workplace.  Essentially, the Law now requires all employers provide reasonable accommodation to victims of these crimes.  Under this provision, the NYCHRL prohibits an employer from refusing to hire, discharging, or discriminating against an individual because the individual is or is perceived to be a victim of domestic violence, sex offenses or stalking. As such, unlawful discrimination includes taking actions against a victim or perceived victim.  An employer is required to make reasonable accommodations for a victim to permit her or him to perform the “essential requisites” of the job, unless doing so would be an “undue hardship” for an employer.

It is clear in the legislative history of the law that the New York City legislature intended that reasonable accommodations under this provision could include providing victims with time off or a modified work schedule.  Employers presented with a request for accommodation under this provision may require the employee to provide certification that he or she is a victim. Such certification may come in a variety of forms, including: documentation from a victim services agency, attorney, clergy member, medical or other professional services provider; a police or court record; or “other corroborating evidence.” The request for accommodations and any documentation provided, including the fact of the domestic violence, must be kept confidential by the employer.  Simply put, the law provides that if they are a victim of domestic abuse:

THEY MAY BE:

•             Entitled to unpaid leave for medical appointments/social services, attorney consultations, and court dates.

•             Entitled to unpaid leave to move and get settled in a new residence.

•             Entitled to a transfer to another worksite away from the batterer.

•             Required to provide proof that they are a victim.

THE EMPLOYER MAY NOT:

•             Release any of the information the victim provides except when disclosure is required by applicable federal, state, or local law.

•             Fire the victim, refuse to hire them, or otherwise discriminate in terms or conditions of employment based on their status as a victim.

See N.Y.C Admin. Code §8-107.

How this can play out in application is illustrated in an actual matter that I counseled a client on.  The employee/victim worked in one of my client’s locations in the NYC borough of The Bronx.  She fled her abuser, and was concerned that he may try to find her at her job.  She asked for a transfer to one of my client’s locations in the borough of Queens, the closest to the domestic violence shelter that she was assigned to.  My client called to get my advice on what they should do, and we discussed the meaning of “reasonable accommodation” and “undue hardship” under the Law.  In my client’s case, it was not an undue hardship to grant the transfer, because he had an opening in a Queens store.  It is important to note that my client is not unionized.  I imagine it could get a little more complicated in a unionized environment if seniority governs transfers and the union is unsympathetic.   However, that is for discussion at another time!

As you can see from the above, laws like the NYCHRL give victims of domestic violence much needed employment protections at the critical time period when they are experiencing serious trauma and disruption in their private lives.  It requires the employer to pause, look at the employee’s predicament, and grant any requested reasonable accommodation that would enable the employee to remain employed while he/she flees their batterer.  Remaining employed is sometimes the only way for the victim to avoid having to return to the batterer for economic means.  This can be a life saver.

Also mentioned above is the fact that many local jurisdictions have laws similar to the NYCHRL.  However, many jurisdictions do not.  As blogged here (http://www.theemployerhandbook.com/2011/10/employer-alert-fmla-for-domest.html) by my friend Eric Meyer, there are some federal legislative efforts to enact national employment protections for victims of domestic violence.  We shall pay close attention to these developments.  In the meantime, while this article focuses on laws that specifically protect victims of domestic violence, be aware that most states also have laws protecting victims of crimes from being terminated for cooperating with investigations, and/or testifying in court.  In addition, existing federal laws covering medical and family leave (“FMLA”), and disability leave (“ADA”), may also apply to protect the jobs of victims of domestic violence in certain circumstances.  Still, even combined, none of these laws provide the type of relief that laws that are specifically drafted to protect the jobs of domestic violence victims provide.  Employers in jurisdictions with these laws should include policies in their employee handbook, and make sure that managers are trained on the policies.  From a compliance standpoint, as with all situations, employers should look at the facts and then determine which laws may apply.  Consultation with experienced labor and employment counsel is strongly advised.

If you, or anyone you know is a victim of domestic violence, log onto http://www.thehotline.org/, or call 1-800-799-SAFE for referrals to local resources for victims of domestic violence.

With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in labor, employment, and immigration law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

FREE EMPLOYMENT LAW SEMINAR: “Hiring Right”, Brooklyn 7/30/14

WHAT

Hiring Right! Join Labor & Employment attorney Shaun C. Reid, Esq. of Reid Kelly, P.C., and NYC Business Solutions on July 30, 2014, for a free seminar on hiring, managing, and firing employees in compliance with today’s labor and employment laws.

WHY

Do you want to avoid making mistakes in hiring that can expose your business to lawsuits? In this class, you will learn about the many laws affecting how you manage employees, from hiring to firing.

You will learn about: 

•         Laws covering the hiring process
•         Job posting and Sourcing
•         References and background checks
•         10 Tips to Avoid Lawsuits

WHEN          

Wednesday, July 30, 2014 from 5:00 PM to 7:00 PM (EDT)

WHERE

NYC Business Solutions Brooklyn Center
9 Bond Street, 5th Floor
Brooklyn, NY 11201

REGISTER NOW!

LogoColorTextRight (Crop2)NYCbusSolutions Logo

 

 

Join NAAAHR-GNY on Tuesday, June 24, 2014 for the HR Legal Update II: A Mid Year Review,

 Join NAAAHR-GNY on Tuesday, June 24, 2014 for the HR Legal Update II: A Mid Year Review, featuring a distinguished panel of employment attorneys with expertise in many areas affecting you and your business. There will be a question and answer period to give speakers an opportunity to address your individual HR questions. The panel will address questions submitted in advance prior to taking questions from the audience.

 Tuesday, June 24, 2014

6:30 pm

The American Cancer Society 
132 W 32nd Street 
New York, NY 10001

 Legal-Team

 (from left to right: Shaun Reid, Cheryl Davis, Andree Laney, Andrez Carberry)

Presentation Topics:

  •  EEOC Initiatives and how they affect you
  •  Latest decisions by the National Labor Relations Board (NLRB) 
  •  Health Care Reform and The Affordable Care Act
  •  Recent court cases – Their outcomes could impact you!

Each presentation will add to the HR practitioners’ knowledge and understanding of the laws connected to the topics.  Each presenter has substantial experience in their field and will interact with attendees during presentations and during a question and answer session following the presentation.

*Certified for 1.75 hours of Re-certification Credit

Have Your Labor & Employment Law Article Published!

NAAAHRGNY  LC Twitter LogoThe Legal Committee of NAAAHR-GNY is offering an opportunity for labor & employment lawyers to have their articles on labor & employment law published on the NAAAHR-GNY website in our “Legal Corner/Featured Article” section ( http://lnkd.in/bx9rU7e ). The details are contained in the attached document. This is a rolling solicitation, so please feel free to submit articles on an ongoing basis. Click on the link below for full details.  If you have any questions or concerns, feel free contact me at the information in the link.

2014 NAAAHR-GNY Solicitation for Legal Articles

Tis the Season for Holiday Cheer, and Layoffs

Ah, the holidays!  Like most people, this is my favorite time of the year.  A time when we think of others, spend time with family and friends, and probably eat too much.  For many, it’s also a time when they might even get a decent bonus at work! What’s not to like about the holidays?  Well, layoffs, for one!

For the purposes of this post I use the term “layoffs” loosely because I include run of the mill terminations in the definition, despite the fact that layoffs typically are forced due to economic reasons or a shift in business strategy, while terminations are not.

Layoffs tend to spike at this time of the year, probably due in large part to year end considerations, including bonuses, and planning for the New Year.   So, for employment lawyers like me, this is the time of year when we see an increase in demand for our services in advising businesses and employees on how to navigate layoffs.  Why some businesses don’t conduct these layoffs earlier, say in September or October, is not clear to me.

There’s no disputing that December layoffs suck worse than perhaps any other, second only to maybe a birthday layoff, or one occurring during or shortly after a medical procedure.   The person laid off will unquestionably hate the company for the rest of their life, and the morale of the remaining employees  will be rock bottom.  You can see it in their faces during that “inspirational” CEO speech at the holiday party.  It will not matter what the CEO says in his speech.  He will appear to the employees as Ebenezer Scrooge, or the Grinch.

But I digress.  Assuming that the layoffs are actually a business necessity, they simply have to be done.  So, here are a few tips to help you anticipate issues that may arise during the severance negotiations.  The list is good for both businesses and employees.  Of course, each person’s situation is different, and factors such as years of service, job function, performance history, company finances, etc., may be weighed differently from case to case.  The list is meant only to stimulate thought and discussion on items typically addressed in severance and/or separation agreements.

Of course, I do not recommend that you go it alone.  Businesses and employees should consult with experienced employment counsel prior to engaging in severance discussions.  A proper analysis of potential exposure under labor and employment laws should be done as relates to the particular employee being considered for layoff/termination, and for the big shots out there be sure to comply with Section 409A of the Internal Revenue Code.  *It should also be noted that not all layoffs or terminations result in a severance payment to the former employee.

Severance Negotiations Prep Checklist

A.  Consider Commitments Made in the Following Documents:

Hire/Promotion Documents

  • Offer Letter
  • Welcome Package
  • Employee Handbook
  • E-mails
  • Stock Option Grants, Plan Documents

Company Policies

  • Vacation Pay
  • Sick Pay
  • Personal Days
  • Bonuses
  • Commissions
  • Expenses
  • Company Equipment

B.  Anticipate Separation Agreement Language on:

  • Non-compete/Solicitation
  • Non-Disparagement
  • Non-Admission
  • Reference Letters/phone calls
  • Description of the termination

C.  Know Company Severance Precedent

  • Seniority
  • Average time between jobs
  • Lump sum
  • Insurance
  • Voicemail

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

The Company Holiday Party: HR’s Role as Party Planner

*If you found this page because you searched whether your Company can force you to attend its holiday party, read #4 below or click here: Mandatory Company Holiday Party?

5 Tips for HR to Help Corporate Avoid Holiday Party-related Legal Liability

  “Angela drafted me into the party planning committee. Her memo said that we need to prepare for every possible disaster.  Which to me, seems… excessive”.

– Ryan Howard, in a holiday episode of The Office.

The good news is that the holidays are here!  The bad news is that Angela is right!  So, if you are in HR, and you are tasked with planning the annual company holiday party, you should plan for all sorts of possible trouble.  Aside from the usual challenges of party planning (choosing the party favors, decorations, menu items, music, liquor choices, etc.), company holiday parties also come with an additional list of potential headaches that can lead to significant legal liability for the company if they are not adequately planned for.  This article will identify some of those issues, and give you tips on how to plan for them and limit or avoid liability for your company.

Let me start by saying that this is NOT an article about how to avoid destroying your career at the company holiday party.  The internet has some excellent materials offering advice on proper company party etiquette.  Needless to say though, don’t drink if you can’t hold your liquor, avoid telling edgy jokes, stay away from politics and religion, and don’t talk your boss’s ear off with shop talk.  Oh, and don’t be the creepy person hanging out under the mistletoe! (more on the mistletoe later).  This may seem like common sense, but every year you will see one or more of your co-workers violating some or all of these unwritten rules.  It looks especially bad when the offending employee works in HR.  Don’t let that employee be you this year!

Now, let’s get to the serious business of protecting the company from holiday party-related liability.  As much as I detest the current proliferation of “10 Tips” styled articles, I have distilled this information into 5 helpful tips for you.  Here goes:

1.Control the Holiday Spirits:  By this I mean, to the extent that you choose to serve any alcohol, you should limit how much alcohol any one person can have.  So-called “dram shop” laws hold companies liable for the acts of their intoxicated patrons/employees who drink and later cause injury to another.  So, controlling alcohol consumption is key to avoiding such liability.  A good way to accomplish this is by issuing 2 drink tickets per person (watch for employees getting extra tickets from their co-workers!).  You can also close the bar a few hours before the end of the party.  In addition, try to see to it that at least finger foods are consumed prior to opening the bar.  It will help reduce the effects of the alcohol once people start drinking.  Also, have a clear policy for servers not to serve alcohol to visibly intoxicated employees.  Lastly, have a plan to arrange cab service or carpooling for intoxicated employees.

2.Company Holiday Party ≠ Company Holy-Day Party:  Be wary of religious discrimination issues.  While the EEOC and courts take the position that certain holiday decorations are secular in nature (i.e., wreaths, Christmas trees, and Santa Clause), and that employers do not have to put up decorations associated with other religions, the EEOC also says that if an employee objects to particular mandatory holiday customs or practices on religious grounds, the employer may have to offer a reasonable accommodation to the objecting employee.

Of course, the employee must have a sincerely held religious belief before a duty to accommodate would be triggered, and the requested accommodation must be reasonable and not cause the employer undue hardship.  What that accommodation could look like is case-specific, but if your holiday party is mandatory for employees to attend, and includes religious readings or a religious play, the accommodation could include allowing the employee not to attend the holiday party (or that part of it), or allowing them to have a separate (perhaps smaller) party or gathering if the numbers warrant it.  It is clear that you cannot force employees to participate in a religious activity, regardless of what the activity is called.   If the party is not mandatory for employees to attend, you can simply tell the employee that they do not have to attend.

If you find yourself grappling with this issue in the planning stage, then refocus on the purpose of the holiday party.  Since the thought behind company holiday parties is usually to foster a sense of togetherness and boost the morale of the staff, it would seem wise that if your workforce has a number of different religions, you should find a way to incorporate the symbolism of each in small ways, or alternatively, reduce the references to each so as not to put religion as the central focus of the gathering.  After all, you want as many employees to attend and enjoy the party as possible.

3.No Place for “The Forbidden Dance”:  Every year it seems party planners are stressing out on how to make this year’s festivities better than the year before.  There are many ways to achieve this ever-illusive goal.  However, I beg of you! In your quest to create the most awesome holiday party ever, please DO NOT include a “dance-off” or “dancing with the stars” competition to the party!  Unless you want ruptured Achilles tendons, pulled muscles, groin pulls, herniated discs, and/or heart attacks, I would strongly advise against including or allowing such competitions in the party, whether formal or informal.  Not only would any medical emergency sustained in the dance-off effectively kill the holiday spirit and bring an abrupt end to the party, but the resultant injuries will most likely implicate your workers compensation coverage, and could also cause FMLA and/or ADA issues to arise.  So, instead of the dance-off, opt for less physical activities, like singing, and/or board or computer games (not Wii Fit though!).

 4.Paid to Party if Made to Party:  Simply put, most wage & hour laws say that if you require employees to attend the holiday party, you must pay them for the time they spend there.  This comes up in situations where the company president plans to make a speech or presentation about the past year’s performance and upcoming year’s goals, and so deems that attendance at the party is mandatory.   If the party occurs during normal work hours, the employees are being paid anyway.  However, in many companies the party is scheduled after work hours.  In those situations, if attendance is mandatory, the employees that attend must be paid.   For non-exempt employees that work more than 40 hours that week, including time spent at the mandatory party, this will mean they get overtime pay.   My advice?  Make attendance optional.  Most will attend anyway because . . .  it’s a party!

 5. Say NO to Mistletoe:  While a playful holiday kiss under the mistletoe can be just the thing needed to kick off the holidays at home with your spouse, it can also be the start to something unlawful at a company holiday party.  Joe from accounting may see this mistletoe moment as his best chance to show Susan from marketing how good of a kisser he is.  Why? Because if it doesn’t work out well, he can always point to the “tradition” of kissing under the mistletoe as an excuse for his conduct.  It’s not just about the mistletoe though.  Something about company holiday parties seems to bring out the romantic (or creep, depending on the situation) in some people. Whether it’s the title “party” or the alcohol, some people get the idea that the company holiday party is the perfect setting for them to act on their attractions.

Thus, the weeks leading up to the holiday party is a great time to refresh the staff’s memory regarding the company anti-harassment policy, and dress code policy.  Emphasize to them that the company has a zero tolerance for any sort of harassment, and remind them that inappropriate touching, jokes and remarks are included within that.  As for dress code, while employees should be permitted to dress up for the party if they choose, they should be guided to dress in clothes that are not too revealing.  Examples of appropriate clothing should be shown to them if it is different from what is commonly understood to be “business casual”.  Make it clear that the company reserves the right to refuse anyone entry to the party if they are in violation of the dress code.  In addition, make it clear that employees that violate the anti-harassment policy can be disciplined for their conduct at the party the same as if it occurred while working.

So there you have it.  While eliminating excessive consumption of alcohol, wild dancing, and awkward pick-up behavior may reduce the entertainment value for some employees, your primary goal as someone responsible for planning the party is to make it a safe and appropriate company holiday party.  Parties don’t have to be wild and crazy to be enjoyable, and those that are wild and crazy are, for good reason, typically not company- sponsored ones.  With these 5 tips, you can now make sure that everyone has a great party, and the start of your company’s new year is not blighted by having to defend a lawsuit born out of a poorly planned company holiday party.

With that, I am sure you will have a have a happy holidays, and a superb new year!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Give Your HR Policies a Check-Up for the New Year

At the start of each year, we are reminded to do an annual check on any number of things in our personal lives.  For instance, among other things, we are reminded to schedule doctor’s appointments, car tune-ups, review personal finances, and change the batteries in smoke detectors.  These are all typically things we have dealt with before, but each New Year serves as a reminder to take time out to check that these things are in order.   The same should be true of your business anti-harassment policies and procedures.

Some companies have a tendency to do all of the hard work in drafting proper policies, and doing staff training, only to think that once they have done these things their work is done.  In reality, such work is never done, and needs to be kept fresh at least annually via training, and policy republication.  This serves not only as a means to reduce the likelihood of incidents happening, but this also serves to boost morale and productivity by comforting employees in the knowledge that they work in a harassment-free work place.  With the EEOC reporting 99,412 discrimination charges filed in fiscal year 2012, all employers are on notice to be extra diligent in educating personnel, and enforcing company policies on anti-harassment.

On the jump, the good folks at Business Management Daily have some useful tips on ways to audit your policies and tune them up in preparation for the months ahead.  Click Here

Dealing with Political Elections in the Workplace: Paid Time Off, But No Free Speech

As the U.S. Presidential election nears, here’s a quick reminder of how political elections intersect with the workplace.

Time to Vote

Under New York State Election Law Section 3-110, employers need to know that:

  • If employees do not have sufficient time outside of their working hours to vote they may take off up to 2 hours at the beginning or end of their shift, with pay, to allow them time to vote.
  • Sufficient time” is defined as: Four consecutive hours either between the opening of the pols and the beginning of their working shift, OR between the end of their working shift and the closing of the polls.
  • Employees must notify their employer no more than 10 or not less than 2 days before the day of the election that they will take that time.

So there you have it.  Not many know of this law, but it exists and is a protection aimed at affording employees the ability to exercise their greatest civic duty, voting.   Personally, I think it would be better if either the election was moved to the weekend, or Election Day was made a national holiday.  While other holidays typically celebrate historical events, Election Day as a holiday would celebrate not only our right to vote, but it would also celebrate the greatest democracy the world has ever known at the same time that we simultaneously show the beauty of it in action!  But I digress.  The important thing is, get out there and vote!

Political Speeches & Activity at Work

Employers

There has been some good blogging about the effect the Supreme Court’s Citizens United decision is having on US political life in the workplace.   See here: http://yalelawjournal.org/the-yale-law-journal-pocket-part/volume-120/addressing-political-captive-audience-workplace-meetings-in-the-post%11citizens-united-environment/  In short, it is now lawful for employers to require employees to attend meetings where the employer tells employees why voting for a certain candidate is in their, and the company’s, interest.  These are known as “captive audience” meetings in the labor law world because the employee is essentially held captive and forced to listen to messages from the employer that they may not agree with.  This is something new in America when it comes to politics in the workplace and may seem counter-intuitive. Most employment laws take into account the inherent imbalance of power between employers and employees, and the potential for undue influence being exerted by employers over employees.  Similarly, it is sacrosanct that each citizen must be permitted to vote their conscience free from undue influences.  It is the basis for the secret ballot.  Thus, employees may be taken aback by the recent change in law permitting political captive audience speeches at work. However, it is important for employees and employers to know that, from a legal standpoint, it is now completely legal.

It is still unlawful to threaten employees if they vote the “wrong way,” but employers are not required to give employees or opposing candidates equal time in response to an employer captive audience speech.

Having said that, I think that from a morale standpoint it is probably not a good idea to force employees to attend political meetings in the workplace.  Nothing divides and causes tension and conflict between otherwise amicable people the way that politics (and religion) does.  Additionally, politics often has significant overlap with social issues that may invoke certain protected classifications covered by state and federal employment laws, such as religion, gender, race, nationality, or disabilities.  Crossing the line may create a hostile work environment.  In addition, there may be overlap with the NLRA which prohibits employers from restricting employees from discussing terms and conditions of employment.  Thus, ramming politics into the workplace can only cause problems, and problems in the workplace can disrupt work and hit the bottom line.  Indeed, most HR consultants typically advise employees against talking about politics in the workplace for this very reason, as seen here: http://www.forbes.com/sites/jacquelynsmith/2012/10/17/should-you-discuss-the-presidential-debates-at-work/

In addition, in places like New York that have laws that protect employees from employer conduct that targets employees based on their lawful off duty activities, including political activities, employers that push employees on political issues run the risk of creating a cause of action where it disciplines an employee that refuses to attend a captive audience meeting or is disruptive in it, but the workplace political activity of the employer so permeates the employment relationship that the line between on duty and off duty political conduct gets blurred.

Employees

Employers that do not want political speech or conduct to disrupt the workplace may prohibit such speech or conduct in the workplace, but may not prohibit union speech/activity that occurs off work time in non-work areas since that would violate the National Labor Relations Act.    What about “free speech?” you may ask, but free speech only applies to government employees in certain circumstances or those who encounter the government.  It does not apply to private employment.   So instead of “free speech” private employees often find that their political speech can be costly, as in costing them their jobs.  As such, it is probably best for employees to avoid talking politics at work.  This is especially so if the employer takes a strong opposing political view.   Like discussing religion, it is probably best to restrict such speech to one’s personal time.

Conclusion

In summary, employees may have the right to take some paid time off to go and vote.  They need to coordinate with management in advance to determine whether they are entitled to it.  We should all vote, and we should all refrain from poisoning the workplace with politics.  The election will be over before you know it, and we can then all get back to work!

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

HR Directors Thrown Under the Bus by Yet Another Federal Appeals Court

On May 9, 2012, in a truly wretched decision for HR Directors, the federal appeals court for the Second Circuit held that when an HR Director does his/her job and runs an internal investigation of sexual harassment, and is then fired for doing so, he/she is not protected by the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 unless the investigation was in response to an EEOC complaint.  The case is called Townsend v. Benjamin Enters. Inc., 2d Cir., No. CV-09-197.  The Second Circuit covers New York, Connecticut, and Vermont.   This decision is consistent with the holdings of the 7th, 9th, and 11th Circuit Courts of Appeals.  See Hatmaker v. Memorial Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010); EEOC v. Total Sys. Servs, 221 F.3d 1171, 1174 (11th Cir. 2000); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990).

Facts

For the purpose of this post, the relevant facts are as follows:  Martha Townsend was employed as an office manager and receptionist by BEI, which trains disadvantaged or low-skilled workers. Michelle Benjamin served as president of BEI, and her husband, Hugh Benjamin, was the corporation’s only vice president.  Karlean Victoria Grey-Allen was BEI’s human resources director.

Townsend, who was hired in 2002, alleged that from 2003 to 2005, Hugh Benjamin sexually harassed her by making suggestive comments and touching her. On March 9, 2005, Townsend reported the conduct to Michelle Benjamin.  On March 17, 2005, Townsend reported the conduct to Grey-Allen.  Acting on advice she obtained from a New York State Division of Human Rights official, Grey-Allen interviewed Hugh Benjamin and asked him to work at home, away from Townsend.

However, Grey-Allen also discussed the sexual harassment allegations with a management consultant. When she learned of Grey-Allen’s disclosure to the consultant, Michelle Benjamin fired her, the HR director, for violating the confidentiality of the investigation.  It is worth noting that the consultant had been retained by BEI to train Grey-Allen when she was hired, and she considered him to be a mentor. After firing the HR Director that was investigating her husband, Ms. Benjamin permitted her husband to return to the office, and then retained an outside HR firm to conduct the investigation. That firm concluded that same day that “nothing happened.”  Townsend then resigned.  Townsend and Grey-Allen then filed suit.

The HR Director’s Legal Argument

Grey-Allen argued that she was fired in retaliation for her participating in the sexual harassment investigation, and her firing was thus in violation of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.  In order to establish a prima facie case of retaliation, she had to show: “(1) that she engaged in protected participation or opposition under Title VII . . ., (2) that the employer was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that a causal connection exists between the protected activity and the adverse action, i.e. that a retaliatory motive played a part in the adverse employment action.” See Kessler v. Westchester Co. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (quotation and citation omitted). As to the first prong, section 704(a) of Title VII makes it unlawful to retaliate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Thus, a plaintiff may establish that she engaged in protected activity either under the “opposition” clause or under the “participation” clause.  Given her facts, Grey-Allen argued that she was engaged in protected activity under the “participation” clause.

The Court Turns its Back on HR Directors

The Court rejected Grey-Allen’s argument based on a textual analysis.  It did so by focusing on the final sentence in 42 U.S.C. § 2000e-3(a), namely where it says the employee participated in an investigation conducted “under this chapter”.  The Court basically said that the chapter in question is devoted to describing the enforcement powers of the EEOC, and how it carries out its investigations and hearings.  To make a long story short, the Court opined that “under this chapter” means that in Grey-Allen’s case, the investigation had to be as a result of the filing of an EEOC charge of discrimination.  Since Grey-Allen was involved in an internal employer investigation, not done in response to an EEOC charge, the investigation was therefore not conducted “under this chapter” and thus was not protected conduct.  In essence, the court found that the text of Title VII is unambiguous in that it does not specifically include employer investigations as it does EEOC investigations.  The net effect of the court’s holding is that the court said that Grey-Allen, and all similarly situated HR Directors are on their own!

The Court took the Easy Way Out

To be clear, what the court did was technically correct, in the sense that it can point to legal precedent and doctrines of statutory construction to support its decision.  However, as the concurring opinion by Circuit Judge Lohier points out, there is also ample precedent for the court to have taken a more just course, if it had so chosen.   Under longstanding principles of statutory construction, courts have long held that Title VII should “be given a liberal interpretation . . . [and] exemptions from its sweep should be narrowed and limited to effect the remedy intended.” Piedmont & Northern R. Co. v. ICC, 286 U. S. 299, 311-312 (1932); see also Spokane & Inland R. Co. v. United States, 241 U. S. 344, 350 (1916); United States v. Dickson, 15 Pet. 141, 165 (1841) (Story, J.).  Consistent with this, Circuit Judge Lohier opined that the phrase “investigation . . . under this subchapter” should be interpreted broadly and does not unambiguously exclude internal employer investigations.

Circuit Judge Lohier’s Concurrence Almost Gets it Right

Let me start by saying that I like Circuit Judge Lohier’s concurring opinion.  I think it is far more instructive than the majority opinion.  However, I disagree with his ultimate conclusion that Congress did not intend to include employer investigations under the participation clause.  Starting with a textual analysis, Circuit Judge Lohier disagreed with the majority opinion by showing that certain provisions of Title VII, when viewed together, make the phrase “investigation . . . under this subchapter” ambiguous.  Having found the text ambiguous, Circuit Judge Lohier then proceeds to analyze the legislative history of Title VII for an indication of what Congress intended when drafting Title VII, and he ultimately concludes that Congress simply did not have employer investigations in mind when it crafted Title VII, and thus “employer investigations” cannot be protected “under this subchapter” as it is currently written.  This is the very basis of his concurring opinion.  However, he then correctly goes on to point out that given the developments in the enforcement and interpretation of Title VII over the past decade, the distinction between government investigations and employer internal investigations seems “antiquated and arbitrary.”

Circuit Judge Lohier essentially acknowledges that employer investigations have grown to become prominent features in Title VII enforcement and interpretation since the 1998 dual Supreme Court decisions gave rise to the Ellerth-Faragher defense, and that Congress could hardly have been expected to anticipate such developments back in 1964.  So it should come as no surprise that the “participation” clause focuses almost exclusively on EEOC investigations, and does not mention employer investigations.  However, where I differ from Judge Lohier is that I would not therefore conclude that Congress did not intend to cover employer investigations.  We simply do not know that, because employer investigations were not a part of the discussion back in 1964.  Indeed, as the EEOC stated at oral argument, employer sexual harassment investigations did not really exist prior to 1964, so we do not know whether Congress would have included employer investigations within the participation clause had the topic been debated during the drafting of Title VII.  However, we do know that Congress intended for Title VII to eradicate employment discrimination.  We also know that Title VII is a remedial statute that must be construed liberally in order to effectuate its stated goal.  As such, the court should have held that the “participation” clause must protect those involved in employer investigations.  It is an interpretation that is consistent with the developments under Title VII case law, and well within the spirit of the law.

Stated another way, instead of requiring Congress to amend Title VII to expressly include employer investigations, the court should have held that they are included, and require Congress to expressly exclude employer investigations in the event that Congress thought the court got it wrong.  That would have produced the correct result in this case, not the arbitrary result the court reached.  It would have also produced justice for Grey-Allen.  After all, her case was not just an academic exercise in statutory construction.  She is a real person that was fired for doing a competent sexual harassment investigation of her boss’s husband.  If ever there was an employee that needed the protection of the “participation” clause of Title VII, it was Grey-Allen.

Who will Lobby Congress on Behalf of HR Directors?

Finally, with this decision, the court is basically saying that Congress is the appropriate body to correct this absurd result.  However, the very nature of an HR Director’s role means that they are not likely to garner the sympathy and support of rank and file employees or labor organizations.  Similarly, the major HR organizations, in pursuit of the ever illusive “seat at the table,” are not likely to want to be seen lobbying for “protection” from the executives that they seem so keen to get closer to.  Indeed, we are a full two weeks after the court’s decision, and yet the case is not mentioned on the website of the leading HR association.   In short, it is not clear why the court thinks Congress will be pressured by anyone to amend Title VII on behalf of HR Directors.

What Now?

Sadly, I expect that many HR Directors that find themselves in situations similar to that which Grey-Allen found herself will now be driven primarily by thoughts of self-preservation when investigating top company officials, instead of doing a competent unbiased investigation designed to discover the truth and take measures to protect the victim and the Company where appropriate.   This is clearly not good for anyone and will likely lead to an increase in litigation such as occurred in this case, where Townsend was forced to litigate her sexual harassment case because the employer abruptly ended the investigation that Grey-Allen was conducting and imposed its own sham investigation.  Without the threat of a retaliation claim from the HR Director, unscrupulous employers wishing to shape the results of an investigation can fire HR Directors with impunity in the same manner that happened to Grey-Allen.  Clearly, the court’s interpretation of the “participation” clause not only fails to effectuate Title VII’s stated purpose, but it may also undermine it in a significant way.

However, for those HR Directors working within the 2nd, 7th, 9th, and 11th Circuits, this is the law of the land.  Those working in the 5th and 6th Circuits should be concerned too, because those courts have suggested that they would apply the same reasoning.  See Abbott v. Crown Motor Co. Inc., 348 F.3d 537, 543 (6th Cir. 2003); Byers v. Dall. Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000).  Given the trend, and with no sign that Congress will soon be moved to act, all I can advise HR Directors that get thrust into a situation like the one Grey-Allen faced is to get your resume ready if you suspect that your boss is not interested in you doing a competent investigation.  Because, as these courts have made clear, you are on your own!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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