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June 19, 2014

Ways to Inspire Civility in the Workplace

Filed under: General HR Buzz,Harrasment — Tags: 11:38 am

Wouldn’t it be great if everyone said and did the right thing all the time and no one’s feelings ever got hurt?  That would be a perfect world, of which we know we do not live in, but one can wish!  Ensuring that employees practice civility in the workplace is a progressive activity.  Civility means to be courteous; polite.  It doesn’t sound that difficult to be nice, but because of various negative factors, we sometimes digress.  Following are some tips for resisting bad manners and encouraging civility in the workplace:

  • Personality conflicts – I always tell a group of new hires that we have (e.g. 100) employees, which means that we have 100 different personalities with 100 different ideas.  Some personalities are drawn to each other, while others repel.  Keeping the peace through personality conflicts is a challenge, but can be done.  Empathetically putting oneself in the other person’s “shoes” will help them to see the conflict in a completely different light.
  • Holding your tongue – Being aware of comments or phrases that may be common, but hurtful to some, is especially important to show respect for others.  Comments like, “Her elevator doesn’t go all the way to the top,” or “He must ride the short bus,” are completely unnecessary and are very insensitive.  Look for the good in others and focus on their strengths.
  • Lead by example – Instill in employees to do their part to lead by example.  Random acts of kindness and sincere compliments of a “job well done,” are encouraging speech and not speech that tears down.   

To summarize, incivility is degrading to all who are affected by it, regardless of whether it is directed at them or whether they are a witness to its harm.  When incivility reigns, it can quickly turn into a claim of harassment or a hostile work environment.  Train your employees to be respectful of others, and to look for positive qualities in them too.  Someday, they themselves, could be the victim, and what a lonely place that would be!  Teaching employees to be aware of and think about the effects of what they say or do, will certainly help them to be more thoughtful and considerate workmates.

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May 8, 2014

Third-Party Sexual Harassment

Filed under: Compliance,Harrasment,Legal Issues12:54 pm

Many times we think of sexual harassment as ‘quid pro quo’ (this for that) between a supervisor and employee.  However, other forms of sexual harassment can involve coworkers and third-parties and are just as serious for an employer to address.  Here are a couple scenarios to illustrate how third-parties can affect employees and create a hostile work environment:

Scenario 1:  A financial institution teller has a customer who conducts business weekly at her branch, and insists on only her helping him.  He lingers at her teller window beyond the time it takes to take care of business.  He always makes small talk that becomes too personal and that makes her uncomfortable.  His conversations escalate to him asking her repeatedly to meet him outside of work time.  The teller finds his conversations inappropriate and is upset when he won’t take “no” for an answer.  She now hides in the back room and another employee waits on him as he asks her whereabouts.

Scenario 2:  A retailer has a business relationship with an independent contractor.  The contractor is in and out of the business daily and talks to various individuals in the course of business.  However, the contractor uses foul and slang terminology when referring to African-American female employees, even in their presence and brings one employee to tears.  He discusses openly his sexual liaisons.  Over time, the employee develops depression and anxiety.  She has reported his behavior to management and she has told him directly she doesn’t want him speaking offensively around her. 

Now, the question: Is an employer liable for a third-party harasser (a customer or independent contractor)?  And, the answer: Yes, IF the employer knew or should have known about the harassment and failed to address it and take action.

No doubt as a conscientious employer you have a competent anti-harassment policy in place, including a complaint process and a thorough investigative action plan.  If you do – - kudos to you!  If you don’t – - please contact HRN and we will help you with your policy!

 

Source:  Meyer, Eric B. “What Do You Do When Your Contractor Is a Sexual Harasser?”

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April 8, 2014

Harassment and Bullying in the Workplace

Filed under: Harrasment,Legal Issues,Title VII — Tags: 6:00 am

What is harassment?

In the employment and legal context, harassment is defined as conduct or actions based on race, religion, sex, national origin, age, disability, genetic information, military membership or veteran status that is severe or pervasive enough to create a hostile, abusive or intimidating work environment for a reasonable person.

State laws may further define harassment to include additional protections, such as sexual orientation, marital status, trans-sexualism or cross-dressing, political affiliation, criminal record, prior psychiatric treatment, occupation, citizenship status, personal appearance, tobacco use outside work, receipt of public assistance or dishonorable discharge from the military.

Harassment is:

  • A form of discrimination that violates Title VII of the Civil Rights Act of 1964, the ADA (Americans w/ Disabilities Act), the ADEA (Age Discrimination in Employment Act), or GINA (Genetic Information Nondiscrimination Act).
  • Unwelcome verbal or physical conduct based on a person’s race, color, religion, sex or gender, national origin, age (40 and over), disability (mental or physical), or genetic information.
  • Severe, pervasive and persistent conduct that unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment.
  • An occurrence where an employee’s status or benefits are directly affected by the harassing conduct of a manager or person of authority.
  • Adverse employment actions (retaliation) against employees who complained of harassment or discrimination or who participate in a complaint procedure.

What is workplace bullying?

In the workplace and as used in this blog, the term “harassment” refers to the illegal form of discrimination. An employee may claim he/she is being harassed; however, he/she may be subjected to inappropriate conduct or behavior that, although not illegal by definition, is unacceptable by your company’s policies and will not be tolerated if proven true. The term frequently used to describe this type of behavior and conduct is often called “workplace bullying.”

Workplace bullying is repeated mistreatment of one or more employees using humiliation, intimidation and denigration. Bullying behavior can exist at any level of an organization.  Bullies can be superiors, subordinates, coworkers, and colleagues.

Some examples of workplace bullying are:

  • Social bantering or teasing
  • Verbal abuse and profanity, humiliation, constant criticism
  • Gossip- conversation & rumors about other people, typically involving details that are not confirmed as being true
  • Taking credit for work performed by others
  • Personal and professional denigration (attacking one’s character/reputation)
  • Overt threats
  • Assignment of an unrealistic workload
  • Aggressive e-mails or notes
  • Professional exclusion or isolation
  • Sabotage of career

Why is it important to prevent harassment and bullying in the workplace?

Compliance with laws that prohibit discrimination and enforcing your internal policy on bullying (or any other type of inappropriate conduct that may not be illegal by definition) are both paramount in preventing lawsuits and litigation costs.  The Equal Employment Opportunity Commission (EEOC) had almost 100,000 employee charges in 2012.  Regardless the number of substantiated claims, the process alone is time-consuming for internal resources and external legal fees are often added to that cost.

What are some measures in preventing EEOC claims and lawsuits?

  • Review your current handbook policies.  Be sure they are accurate, compliant, and up-to-date regarding harassment, inappropriate conduct, sensitivity, and workplace bullying.
  • Ensure every employee receives a copy of these policies and conduct company-wide training.
  • Conduct a separate training session for managers and supervisors, clearly stating expectations when they observe or hear of any violations regarding possible harassment or bullying.

 

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June 11, 2012

What are the Laws the EEOC Enforces?

This month we are blogging about the EEOC.  I don’t think we could have picked a subject that has more media attention than this one.  In one news feed this morning, there were four articles with “EEOC” in the headlines.  One would think with all the attention, the number of cases would be decreasing as we more awareness of discrimination is created.  That, however, doesn’t seem to be the case.  As written in my blog on June 6, the number of cases reported has increased for three years in a row.

So what exactly does the EEOC enforce?  In most cases, it is nothing new.  In fact, most of them have been in force for years and, in some cases, decades.  The most recent law is the Genetic Information Nondiscrimination Act of 2008 (GINA).  Below are the other laws enforced by the EEOC:

  • Title VII of the Civil Rights Act of 1964 (Title VII)
  • The Pregnancy Discrimination Act (Amendment to Title VII in 1978)
  • The Equal Pay Act of 1963 (EPA)
  • The Age Discrimination in Employment Act of 1967 (ADEA)
  • Title I of the Americans with Disabilities Act of 1990 (ADA)
  • Sections 102 and 103 of the Civil Rights Act of 1991
  • Sections 501 and 505 of the Rehabilitation Act of 1973

Stay tuned to future blogs as we explore each of the laws above, including what the EEOC’s requirements regarding compliance include.

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May 21, 2012

New EEOC Website to Check State Charges

I don’t know if it’s just me, but it seems our government is coming out with more on-line tools providing valuable information.  The most recent one is from the EEOC who unveiled a website last week where you can research your state’s charge data for fiscal years 2009-2011.  This data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges.

For example, my state of Kansas had 873 charges for FY 2011, up from 739 in FY 2010.  The highest percentage was in the category of retaliation (40.2%), followed by race (34.7%), sex (32.3%), disability (27.8%) and age (22.9%).  GINA had the fewest charges filed (0.5%).  Overall, the state of Kansas makes up 0.9% of the US total charges.

If you are an employer, it may be useful to know what types of charges are being filed in your state, along with where they fall within the makeup of U.S. charges.  When browsing through the various states, I found some interesting trends that are noteworthy to be aware of.

You can click here to link to the website to check out your state’s total charges.

 

 

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February 27, 2012

Does an Anti-Harassment Policy Really Make a Difference?

As organizations, we spend a lot of time writing policy manuals and employee handbooks. These generally cover the gamut from the company mission statement to termination procedures. Also generally included (and should be) is an anti-harassment policy prohibiting all types of harassment in the workplace.

Sometimes we wonder if our policies really do their job in outlining correct procedures and protecting the company if a claim is filed. In the case of Crawford v. BNSF Railway Company, 8th Cir., No. 11-1953 (Jan. 11, 2012), the policy did its job as the proper procedures were carried out as prescribed.

To sum up the case, 5 mid-level supervisors at BNSF were subjected to frequent sexual and racial harassment in early 2008. Although they were aware and had been trained on BNSF’s “zero tolerance” policy on workplace harassment, they failed to report anything until filing discrimination charges with the EEOC in October 2008, months after the alleged harassment had begun.

Within two days of BNSF receiving the complaint, they placed the alleged harasser on leave. Upon completion of their investigation, the employee accused of harassment was terminated.

The employees stated BNSF was aware of the harassment, even without them reporting it or filing complaints, and did nothing about it. The court stated because BNSF had a published policy that provided a procedure for reporting suspected harassment, the supervisors had to invoke the procedure in order to have “actual notice.”

Policies are a form of insurance for an organization and not only do they need to be written effectively, they should also be distributed to employees, easily accessible, and appropriate training be provided. This is true in the case of BNSF. To read more about this case, please click here.

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February 9, 2012

HR Fact Friday: Discrimination / Retaliation Claims Against Employers Skyrocket

A hundred thousand new charges were filed in the Equal Employment Opportunity Commission’s (EEOC) fiscal year ending 2011. This is the second straight year a new record was set in the total number of new charges. Here are the most commonly-filed claims: (1) retaliation; (2) race bias; (3) sex discrimination / harassment; (4) disability bias; (5) age bias. The EEOC recovered $455 million from employers in 2011. Case in point…a large national soft drink company recently agreed to pay $3.1 million to settle race discrimination claims related to background check administration.

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December 2, 2011

HR Fact Friday: HR Law Brief News Alerts

Filed under: Employment Law,Harrasment3:01 pm

Here are a few brief points on HR issues currently in the news.  First, we have all heard about the Penn State scandal dealing with failure to report potential child abuse problems and the criminal.  Some commentators also are warning that the matter suggests a failure to adequately enforce policies designed to prevent an environment of sexual harassment in the workplace. 

Second, the United States Supreme Court will likely decide by June of 2012 whether the national health reform laws passed by Congress are constitutional.  Federal appeals courts have reached different conclusions on this question. 

Finally, the federal Justice Department has filed a lawsuit in Utah federal court challenging certain immigration reform provisions passed last year by the Utah Legislature.  For more details, see: http://www.sltrib.com/sltrib/politics/52972971-90/497-attorney-bill-department.html.csp.

 

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November 4, 2011

HR Fact Friday: Restaurants and Sexual Harassment Claims

Filed under: Employment Law,Harrasment — Tags: , 9:22 am

Recent news stories have extensively detailed one of the current presidential candidate’s responses to sexual harassment allegations made against him when he worked at the National Restaurant Association a few years ago. These stories have triggered some related stories about possible problems of sexual harassment in the restaurant industry generally. One such news article suggests sexual harassment claims are fairly common in the restaurant industry, perhaps because, in the words of one expert, it’s a very collegial environment with a transient workforce, manager and employees often party together after work, and the industry is said to be very male dominated.   Click here for more on the story.

Indeed, a restaurant chain in North Dakota recently paid $1 million in settlements to 17 employees who alleged they had been the victim of sexual harassment while working.  Interestingly, this settlement required the employer to establish and distribute a policy prohibiting the viewing and dissemination of computer pornography or sexually-explicit material.  The Equal Employment Opportunity Commission (EEOC) has brought a number of lawsuits against restaurants.  Both the EEOC and the industry also have tried to address another possible reason for such claims, i.e. that many restaurant workers are quite young as referenced in this link.  Whatever the causes or reasons for all these claims, these news stories are a timely reminder that restaurant employers must be especially vigilant to ensure there is nothing hot and spicy being served up beyond the great food on the menu.

PROMPT REVIEW AND RESOLUTION IS BEST CURE FOR CLAIMS
When sexual harassment (and other discrimination claims) arise, the best cure remains prompt remedial action.  This point was demonstrated again by a recent ruling from the federal Tenth Circuit Court of Appeals.  In this federal case, an administrative assistant accused a retired Kansas judge of sexual harassment. The court dismissed the claim because the state had in place a policy, distributed to all employees, that told them how to complain about problems and that required a prompt review/resolution of complaints.  In this case, the employer found the claim meritless, but in other cases courts also have declined to hold employers liable for misbehavior that the employer corrected as soon as it learned about it.

If you find this information helpful, sign up to receive HRN”s FREE semi-monthly HR Legal Update newsletter sent right to your inbox. To sign up go to www.hrnonline.com.

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March 21, 2011

Family Responsibility Discrimination Growing

Filed under: Harrasment4:01 pm

According to a study by the Center for Worklife Law, the number of family responsibility discrimination (FRD) lawsuits is growing steadily.  A few years ago these types of cases were rare. But in the last decade they have increased 400%.  FRD involves discrimination against employees because of the need to care for family members. According to the study, 67% of cases involve pregnancy and maternity leave, 9.6% involve elder care, 7% relate to care for sick children, 4% for a sick spouse, 3% involve leave for newborn care by a father or adoptive parent, and 2.4% to care for someone with a disability.

The cases are expensive.  It’s estimated that employees win 50% of the cases and that the average damages are over $570,000.   As with other types of discrimination, training supervisors and managers regarding the basic legal requirements of FRD is critical.  Reviewing leave policies and practices with FRD in mind is also a good idea.

For more information go to:     http://op.bna.com/dlrcases.nsf/id/ssaa-849uvy/$File/FRDupdate.pdf

 

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