Category: Employment Law

November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

November 20, 2017

Top 7 Tips for Investigating Workplace Harassment Complaints (Webinar)

On November 16, 2017, I presented a complimentary webinar on Investigating Workplace Harassment Complaints. For those who weren’t able to attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss my Top 7 Tips for Investigating Workplace Harassment Complaints:

Be Prompt and Thorough
Maintain Appropriate Confidentiality
Get Buy-in from the Complainant
Put It in Writing
Involve Your Attorney
Reach Conclusions, but Not Too Early
Avoid Retaliation

Click below to access the supplemental materials for this webinar:

Why You Should Watch This Webinar

Reports of sexual harassment have flooded all media channels recently. This accounts highlight the need for business organizations to be proactive in avoiding workplace harassment in the first place. But that isn’t always possible. When harassment allegations do come to light, employers must respond appropriately to prevent escalation, which can have devastating negative consequences.

Organizations must investigate every allegation of harassment, even when the victim prefers to keep the matter confidential. Harassment is wrong and detrimental to productivity in the first place. But, once management knows of inappropriate conduct, failure to promptly investigate and take appropriate corrective action can also result in significant legal liability.

This webinar gives some important tips on how to investigate harassment complaints without making things worse. It includes practical advice and potential pitfalls for human resources professionals and management.

November 14, 2017

When Are Managers Accountable for Workplace Harassment?

Anti-harassment policy? Check. Complaint procedure? Check. Training? Check. What more can an organization do to avoid harassment in the workplace? One thing they must do is hold their managers accountable.

For many employment law purposes, managers and supervisors are “the employer.” They are the ones whose actions can most directly lead to the business itself being liable. But that’s not the only reason they need to be held accountable.

You don’t need a lawyer to tell you that good managers and supervisors are vital to business success. But maybe I can help you think about how important the issue of workplace harassment is.

[And if you want to learn more about how to investigate workplace harassment complaints, watch my free webinar.]

Harassment Doesn’t Prevent Itself

“Harassment” is a broad term. It could include simply being obnoxious, which isn’t necessarily illegal. But when talking about workplace harassment, we typically mean unwelcome conduct related to a legally protected category. It’s not just sexual harassment. Discrimination laws prohibit harassment based on numerous characteristics. Age, race, disability, and religion are just a few of the most prevalent.

No workplace with more than a few employees can simply rest assured that these topics won’t come up in ways that make some employees uncomfortable. You must be proactive both to prevent harassment in the first place and stop it before it escalates. Even if managers themselves avoid doing or saying inappropriate things, they must keep other employees in line.

All Harassment Is Bad for Business

Not all harassment that occurs at work violates employment discrimination laws. [For more on the legal nuances, read What Makes Workplace Harassment Unlawful?.]

But virtually all workplace harassment has negative consequences. If nothing else, it makes the victim of harassment less comfortable in their job. That usually hurts productivity. Lower productivity creates plenty of problems, including lower overall morale. Reduced worker morale also leads to higher absenteeism and even lower productivity. Eventually this can mean lower revenue. Loss of profits can necessitate layoffs. . . .

And all that can occur if only one employee perceived harassment just once! Nevermind that the employee may tell a co-worker, who may also become uncomfortable. The second employee’s discomfort can be because they also feel offended by what the “harasser” did. Or just because they feel bad for their co-worker. Or because they don’t know whether they should tell someone else, etc.

As the story spreads, potentially with some details morphing in various directions, many employees become involved. And the impacts on the organization multiply.

Managers’ Role

Sure, managers have many duties. But, generally, a primary function is to keep other employees productive. Hence, they can’t tolerate harassment and its potentially disastrous implications.

Yes, it’s a given that managers must understand what harassment is and refrain from engaging in it. They should set the example for the people below them. This alone is easier said than done.

Beyond that, all managers have to be attentive to what other employees are doing and respond when someone crosses the line. They can’t hear something inappropriate and just write it off as an innocent joke. If there is any indication that the conduct may have offended someone, then the manager must step in, at least to report it to the appropriate personnel so they can investigate.

Similarly, when employees report incidents of possible harassment to managers, the managers can’t just handle it themselves. They must involve others as appropriate, consistent with the organization’s anti-harassment policy. Usually, the company will need to investigate carefully, and the manager may not be the right one to do that.

Besides the effects on morale and productivity, there are legal consequences when managers don’t do the right things.

Employer Liability

Employers are strictly liable when an owner or high-level manager commits unlawful harassment. In these cases, the employer can argue that no harassment occurred. But it probably won’t avoid liability by proving that the victim didn’t report the harassment.

Employers may also be automatically liable for harassment by lower-level managers and supervisors with sufficient control over the working conditions of the victim.

When coworkers or lower-level managers with no direct control over the victim’s working conditions engage in harassment, their employers are not necessarily responsible. In these cases, the employer’s legal obligation usually kicks in only when it (through higher level managers) knew or should have known about the harassment.

Manager Liability

The New York Human Rights Law, unlike Title VII, directly holds some managers accountable for harassment. It permits individual liability for both employees who commit harassment and supervisors who ignore their duty to investigate and remedy it.

Although plaintiffs usually file harassment complaints against the employing entity, they sometimes also name individual employees as defendants. Depending on the circumstances, the employer may or may not pay for the manager’s legal defense or any settlement or verdict against him or her.

How To Hold Managers Accountable

First, position them for success. Employers should provide training for all managers on harassment, including their heightened responsibilities in dealing with it.

Second, monitor managers’ performance in this area. If nothing else, pay attention when complaints come forward. Determine which managers may or should have known something sooner. Investigate that and the incident of harassment.

Third, discipline when warranted. Remember all the potential costs of harassment to your company? You can’t afford bear those repeatedly. If a manager put the business at risk by not handling a harassment situation properly, don’t just let it go. Sometimes it may be sufficient to retrain the manager. In more egregious situations formal discipline up to termination may be in the company’s best interest, even if the manager brings a lot to the table in other areas.

Fourth, hire the right managers. Arguably, this could be the first step. But few employers will start out by focusing on hiring people who are good at freeing a workplace of harassment. That can change, though, after a couple of bad situations come to light. Remember that just because someone is great at making widgets, it doesn’t mean they will make a great widget manager. It’s more likely that a great manager can succeed in the role even if they don’t personally know how to make the widgets. As long as they can keep the people who are great at making widgets in line, the business can be productive.

For those whose role includes investigating harassment complaints, don’t miss my Top 7 Steps for Investigating Workplace Harassment Complaints.