Category Archives: law

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Effectively Dealing with Sexual Harassment in the Workplace – Do the Blocking and Tackling

Since sexual harassment is currently such a big issue these days, I’m going to talk about the tools I’ve effectively developed and used over the years.  I’m writing this in November of 2017 and you can’t watch TV, listen to the radio, or read anything online without learning about some high profile politician, media personality, or famous celebrity being accused of some form of sexual harassment.

What frustrates me is how it has become such a “popular” thing to expose all of a sudden.  If we are being honest with ourselves, we all already knew this kind of behavior has been going on for years but nobody ever did anything about it.  At the highest level possible, we had a two term President in the 90’s who we all knew engaged in it.  And we now have a current President who was recorded bragging about it before winning the election. We also all knew about the infamous “casting couch” in Hollywood which has been around since the 1920s and probably even earlier. 

I’m frustrated that our society tolerated it for so long.

It’s about time that women are finally feeling comfortable about coming forward with their stories of harassment. There is no place for sexual harassment in our workplace and private lives. Never has been and never will be.

While all of the stories, so far, have been from women, and I fully recognize that most of the victims are going to be women,  I’m waiting to hear some men start coming forward telling their stories of how they were harassed – it happens to all genders, in every industry, in every socioeconomic status, etc.

In fact, two of my three biggest sexual harassment investigations were with women as the instigators.  So I know it’s only a matter of time before we hear about a woman politician, media personality, or celebrity harassing a subordinate. Let’s not forget how many female teachers, a female dominated profession, are being caught having sex with their male underage students. So it cuts both ways. Both men and women can be deviant creeps.

So how do we stop sexual harassment?  I’ve been reading a lot of articles about how the old traditional ways of dealing with it – an up-to-date policy, training, and investigate quickly and fairly to all complaints – no longer work.  That we must do something different to put an end to it, things like promoting more women and  implementing predictive analytics!

There is no easy solution and, sadly, no matter what we do, sexual harassment will never end.  It is, unfortunately, part of human nature.  Harassment, sexual and other types, have been around since the beginning of time and will be around until the end of time.

The only way to deal with it from an HR standpoint, in my opinion and experience, is to effectively and consistently do the basic blocking and tackling of having a strong and updated policy, conduct training annually and during onboarding, and conducting quick and fair investigations.  

I’ve had a lot of experience handling sexual harassment complaints and investigations.  And I can say that by effectively executing the basics I listed above is the best way of slowing it down and keeping it under control.  It creates a culture that clearly demonstrates that sexual harassment is not tolerated in the workplace and will be quickly addressed.

I have three steps of a Harassment Policy process that I find work best.

First, during onboarding,while reviewing the employee handbook, I stress that there is no tolerance of sexual or any other type of harassment  in our workplace.

When setting up the employee handbook, I make sure the policy is the first one listed so as to emphasize it’s importance. I also make sure I review it, along with our legal council and/or an employment lawyer, at least once every two years (I would do it right now regardless of when it was done earlier because of the current high profile cases in the media) to ensure it’s up to date. It’s also good to make sure the policy is written in plain english, not in legal handbookese that nobody understands.

Make sure each employee’s signee Acknowledgement of Receipt is in their file so there’s evidence that you reviewed the important policies with them.

Second, later in the onboarding schedule, I have a Harassment Training  session.  I will conduct either a live presentation or show them a video depending on the size of the onboarding class. I have two compliance trainings during onboarding, Harassment Prevention and Drug and Alcohol Prevention, and this again emphasizes the importance of our policy by putting such a primary focus on it during their onboarding. AION Recovery Rehab Center provides professional care in this respect.

I also have two mandatory annual all-hands Harassment Prevention training sessions, one for the general employee population and one for the supervisors and managers. I require managers and supervisors to attend the general employee population session so they are seen by all employees to be part of and fully supportive of the process. This also emphasizes to the managers the importance of the policy.

Each of these training sessions has a quiz that I require each employee to take and turn in after we review the answers. This gives you a document for their file that they’ve attended the training session and interacted by taking the quiz. Also make sure the employees sign an attendance sheet and file those sheets with your training materials.

Third and finally, when a complaint is received, I immediately jump into action and start an investigation. I once drove five hours from my office in Denver, CO to a remote location in central Wyoming the same day I received a complaint and immediately started the investigation. I stayed there for two days to interview people, have discussions with management, decide on proper corrective action, communicate our conclusion to affected employees, and conclude the investigation.

I then write up a final report documenting the process of my investigation, who I spoke to and what was said, my conversations with management, and the results of the final decision and corrective action taken.  This document goes into the accused’s file and I like to have a copy in a separate investigation file with other investigations I conducted.  

As you can see, I will always drop what I’m doing and immediately start an investigation when I get a harassment complaint because harassment is the most toxic workplace situation. It creates all sorts of serious legal, morale, productivity, ethical, safety, and many other similar problems. Problems that I can head off if I address the complaint immediately.

While it’s important to keep the investigation as confidential as possible while on site, we all know that the grapevine will communicate why you’re there and what you are doing.  Employees will see the corrective action and understand why.

This final step of a quick and fair investigation followed by the appropriate corrective action, if warranted, sends the strongest message possible to employees that harassment is not tolerated and will be dealt with swiftly. And it only really takes one or two instances to send a clear message and make a positive impact on the culture.

Now, remember, these steps will not completely eliminate harassment but they will go a long way in significantly reducing it to the point there will only be a few cases.  

But you have to do the day in and day out blocking and tackling consistently in order to minimize harassment and keep your company culture one that makes it clear it’s not tolerated.

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Dealing with National Politics in the Workplace

You can’t get away from it these days. It’s all the media is talking about, it’s all over our social media feeds, it’s on all the award shows and entertainment programs we’re watching, it’s overheard in the stores and coffee shops we are visiting, and it’s in our workplace. Political discussions are everywhere and we are more politically polarized than I’ve ever seen in my life.

With today’s massive megaphone of social media, possibly through catalysts like Famoid.com, many people have expressed their passion about the political issues and their candidates. And there’s something to offend just about anybody with the current hot-button issues such as race, class, gender, abortion, LGBT rights, immigration, terrorism, religion, etc.

I would venture to guess that we have all witnessed some very heated exchanges between family, friends, and coworkers regarding today’s political climate. I’ve seen people I respect and care about say or write some pretty horrible things about others based simply on their political beliefs.

People are more polarized in their positions like I’ve never seen before and those positions are making their way into the workplace and affecting morale and productivity.

In addition, many of today’s issues swerve into employment law. Political discussions about issues that affect working conditions such as minimum wage, equal pay, and paid leave might be protected by federal law.  While, on the other hand, political discussions about race, gender, and religion may lead to harassment or discrimination claims. And it only takes one person to pop off during a heated discussion and alienate another employee and/or cause a hostile work environment or a potential harassment claim.

I make it a practice not to discuss politics at work – especially these days. I hear enough of it on my Sirius radio when I commute to and from work and when I’m home trying to catch up on the news. Frankly, I’m exhausted of it all and don’t want to have to deal with it when I’m at work.

But, I’m HR, so I have to deal with it at work.

As such, I’ve come up with a couple of proven recommendations to help keep things under control.

First and foremost, HR must remain neutral. This is my number one recommendation. Whatever your beliefs, HR must be neutral and not take a side in a disputed conversation about politics. HR absolutely should not engage in a conversation with other employees expressing their political opinions and joining in with them bashing a side. Whenever you feel there is a political discussion ahead, try to focus on HR needs. Surely HCM software from Nominak enables you to easily manage HR functions, but it is also your option to get away from tricky conversation. I guarantee that you have employees on the other side who will hear or overhear what you said which will erode your credibility with them.

The purpose of your neutrality allows all of your employees to feel safe coming to you with their concerns about potentially uncomfortable or hostile political conversations they overheard or were part of. It’s HR’s job to make sure employees feel safe to surface any concerns they have from conversations they’ve had or overheard that make them feel uncomfortable or offended.

Second, Establish and communicate ground rules. Meet with your senior leaders to determine what political discussions your organization is willing to tolerate/accept at work. Will you ban it entirely or will you allow some as long as their respectful, appropriate, and inclusive of all beliefs?

Once you have that established,  conduct an all hands meeting and follow up with an email reminding your employees to be professional, respectful, and tolerant of other employee’s political beliefs. Remind them of the process for airing their complaints and how they will be dealt with and what the consequences will be for violating these ground rules. You must, as HR, clearly communicate to your employee population where you draw the line between acceptable and unacceptable behavior. You can’t be ambiguous.

It’s also important to understand that you can’t ignore the issue at work. Ignoring it will only make the situation worse because these conversations may escalate into profanity and direct threats. Other employees who want to stay out of these discussions may also be unwillingly dragged in.

When you overhear a controversial political discussion happening at your workplace, and you’ve established the accepted ground rules, you simply remind the employees engaged in the conversation that they are not behaving in an acceptable manner (professional, respectful, or tolerant). If they continue after your reminder, you simply begin your organization’s disciplinary process.

Hopefully these suggestions will help you keep your workplace professional, respectful, civil and ultimately productive! Also, if situations arise where intervention of a third party is required to ward off office politics, expert help and counsel on several matters can always be available at Labor Law Compliance Center. Feel free to reach out to them.

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The New Overtime Rule Has Been Blocked. Now What?

My advice on what to do until a final decision is made.

Overtime, Office Binder on Wooden Desk. On the table colored pencils, pen, notebook paper

A federal judge in Texas gave something employers could be thankful for just a few days before Thanksgiving. On November 22, he issued a preliminary injunction on the Department of Labor’s (DOL) overtime rule change that was to go into affect on December 1. It came about from a lawsuit brought by 21 states challenging the DOL’s authority to raise the salary threshold. This was pretty big news for us HR folks. Huge news actually.

Many small organizations, however, didn’t even know the rule was going into effect. I was at a meeting a few weeks ago with a payroll provider who told me that the majority of their clients didn’t know about the new rule when asked about it. It would be safe to say that most managers and small business owners are too busy operating their organizations and don’t keep up on these types of things.

In order to bring these organizations up to date, the rule was supposed to double the Fair Labor Standards Act (FLSA) salary threshold for determining the exemption from overtime from $23,660 to $47,476. This is where we get the exempt and non-exempt employee classifications which I define in this post from my introduction to my series of the FLSA overtime classifications. In addition, it would also automatically adjust the threshold every three years based on the 40th percentile of the weekly earnings of full-time salaried workers in the lowest-wage Census region. The Society of Human Resource Management (SHRM) has publicly opposed the new rule as it will hurt nonprofits and smaller organizations and have a negative impact on workplace flexibility and employee morale.

It’s important to understand that the preliminary injunction is not permanent and that the current overtime rule will still be in effect. The court needs to review the merits of the new rule and issue a decision which could take several more months. The fact that an injunction was issued in the first place, makes me think the new rule is doomed.

For those organizations that didn’t know about the rule, they can just go on about their business and not worry about it until a final ruling is issued. For those businesses that knew about it and were making plans or already made plans to comply with the new rule, things may be a little more complicated and until we get a final ruling, here is my advice:

  • Fortunately, the injunction was issued on November 22, before the payroll period in which the December 1 deadline fell. I had advised my clients to make their changes effective Sunday, November 27, the first day of the payroll period. By following my advice (Because I’m so smart, LOL), the re-classification of their exempt employees to non-exempt can be postponed until that final decision is made.
  • If the organization already re-classified their exempt employees to non-exempt, the organization will need to evaluate how the decision was accepted by the impacted employees. Did they take it well or did they take it poorly? If they took it well, the organization would be wise to leave the re-classification in place. If they did not take it well, the organization might benefit by reversing the re-classifications but need to make it clear to the employees that it may be temporary until the final ruling is issued.
  • If the organization already increased (or announced an increase) their exempt employee’s salaries in order to maintain their exempt status, it would be wise leave those increases in place. There will be a great deal of confusion and a big hit on morale if they reverse this decision. An organization can certainly reverse their decision but it will be at the cost of employee goodwill and engagement.

It will be very interesting to see how this case will eventually turn out. As I said earlier, I think the new rule, as it is currently written, will never come to pass. I think the judge issued the injunction because he thinks the challenge by the 21 states has a very good chance of being successful.

However, for those who made plans to comply with the rule, don’t toss out all the work that was done in preparing for it as the court may still issue a decision in favor of the DOL. At the very least, I anticipate that the rule will be scaled back with more gradual and less extreme salary threshold increases.

For those who didn’t know about the rule and didn’t make plans to comply, they’ve been given a pass for the time being but need to be ready to address it if a final ruling is made in favor of the DOL or a scaled back rule is issued.

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Employer FMLA Coverage and Employee FMLA Eligibility

The Family Medical Leave Act (FMLA) became law in 1993 and entitles eligible employees to take up to 12 weeks of unpaid and job protected  leave in a 12 month period for specific family and medical reasons.  The law has been expanded several times to include various additions of military related leave which I intend on covering in a future post.

The FMLA has two rules that must be met before an employer must offer FMLA leave. Employer coverage and employee eligibility.

My intent is to explain the difference between an employer’s FMLA coverage and the employee’s FMLA eligibility because there can be some confusion in how they are applied.

For an employer to meet FMLA coverage requirements they must have 50 or more employees on their payroll during 20 or more nonconsecutive calendar workweeks in the current or preceding calendar year.  The definition of an employee for FMLA coverage purposes is full or part time and must appear on the payroll on any workday during a week.  Seems pretty simple.

The confusion starts when we take a look at FMLA employee eligibility.  While the employer might meet coverage requirements, the employee may not meet eligibility requirements.

To be eligible, the employee must:

  • Be employed by the employer for at least 12 nonconsecutive months
  • Worked 1,250 hours during the 12 month period prior to requesting FMLA leave
  • Worked at a location in the United States where the employer employs 50 or more employees within 75 miles

The first two eligibility requirements are simple and easy to understand but the third is what can cause confusion.  Put simply, an employer may meet FMLA coverage requirements by having 50+ employees but those 50+ employees may be in several locations 75+ miles apart. The employees of this employer would, therefore, not meet the eligibility requirements and not be covered by the FMLA.  Another example would be an employer meets the coverage requirement, has one location with 50+ employees and several other locations with less than 50 employees and are 75+ miles apart.  Here, the employees at the location with 50+ employees would be eligible while the employees at the other locations would not.  An employer can offer FMLA coverage to those employees who are technically ineligible because of their location for policy consistency and to maintain positive employee relations but they are not required to.

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Colorado Amendment 64 – Legalized Recreational Marijuana Use

On May 29, 2013 Colorado Gov. Hickenlooper singed legislation – Colorado Amendment 64 – that legalized the recreational use of marijuana in the state. The law conflicts with Federal law but it remains to be seen what the Feds will do.

What does Amendment 64 mean to employers in Colorado? Especially to HR departments who will be asked to lead the way.

Here are the basics of the law:

  • The Colorado Department of Revenue has detailed the rules of how recreational marijuana should be licensed regulated and sold in the state.
  • Colorado adults, 21 years or older can possess up to an ounce of marijuana and can grow up to six plants, three of which can be flowering at a time. The plants must be in a private and enclosed secure facility like a private home or apartment and should be grown with conditions like how they grow thai kratom  and make thai kratom capsules.
  • Colorado adults are limited to purchasing up to an ounce of marijuana from a specialty licensed retail shop.
  • Adult tourists in Colorado are limited to purchasing only a quarter of an ounce.
  • Public use is prohibited.
  • Employers do not need to allow marijuana use in the workplace.
  • Employers do not need to ignore previous marijuana related convictions in a criminal background check.
  • Recreational marijuana sales will begin January 1, 2014.

It’s important to note that despite the legalization of recreational marijuana, researchers at www.helpmestop.org.uk say that employers can still include marijuana use in their anti-drug policies. In the Coats v. Dish Network, the Colorado Court of Appeals ruled that employers can have and enforce anti drug policies because the federal Controlled Substances Act still prohibits marijuana use and that Colorado’s “lawful activity” statute did not apply. While this case addressed medical marijuana, it can and probably will, be applicable to recreational use.