While sexual harassment has been at the forefront of employee relations in the United States for years and just as it would appear that the days of pervasive quid quo pro harassment (where sex is demanded from a subordinate in exchange for a promotion, keeping the job, better pay, etc.) are dwindling, new forms of harassment are becoming prevalent in the workplace.
Now that it is rare to hear complaints that a manager said something like, “Sleep with me or I’ll have you fired!” technology has made harassment much more subtle and harder to uncover. Technology has shifted the concern of preventing the creation of illegal hostile environments.
Now, we see managers making inappropriate comments in social situations such at happy hours, or on business trips, flirting at a company party or company sponsored event. It includes sending text messages to an employee’s Smartphone and personal email account. Email, IM and texting remove the ability of co-workers from reading the body language and the tone of the sender.
A young professional female tells a story about how one of her supervisors who was married with children almost her age, overheard her comment to a female co-worker that she was going to buy a new dress after work. The supervisor sent a message to the professional’s email account late at night stating that he could not wait see her in the dress as he was sure that she would look amazing.
What can you do to protect your business from a hostile environment claim?
Do your employees have a complete understanding of what behavior is unacceptable?
Do your employees know how to report such behavior?
Do your employees know that you will respond quickly and effectively to address all complaints?
Do you fully investigate each and every complaint that is reported?
Do you take prompt appropriate and effective action at the conclusion of the investigation?
Preventing harassment and hostile work environment is difficult BUT, creating defenses against expensive and time consuming litigation over harassment is possible and highly suggested. If you are not sure where to begin, or need assistance, hire assistance from knowledgeable and experienced HR/legal professionals.
Saturday, August 15, 2009
Wednesday, July 29, 2009
Working overtime to prevent being sued for unpaid overtime wages.
This is not the first time we have noted the issue of overtime and how the government and employees are coming after employers who fail to understand their duty and don’t pay overtime wage to those employees who deserve them.
We continue to hear employers say “well, my employees are salaried, so they don’t get overtime.” Failure to understand the FLSA and who is eligible for overtime continues to be a huge problem for employers. In addition to figuring out who is or isn’t exempt from overtime pay, how to calculate how much to pay also confounds small and medium sized business. Even large corporate employers have trouble with FLSA and overtime.
QuikTrip Corp recently had to pay almost $750,000 in back overtime wages to current and former employees in nine states including Kansas and Missouri. A Department of Labor investigation found that QuikTrip violated the FLSA when they did not pay additional overtime based on performance related bonuses.
Federal law does not require an employer provide bonuses to its employees, however if nondiscretionary bonuses are paid to non-exempt employees, the bonus amount must be included in the employee’s regular pay rate to compute overtime. The determination of exempt or non-exempt status is an individual determination based on what the employee actually does, not the position, title, or being paid by a salary. A wrong decision can have a devastating impact on a business financially as well as its reputation.
This determination is extremely important and you should make sure that your HR partner is trained and fully competent to assist you in making it. Don’t be one of the thousands of employers this year that gets caught by the government investigators or sued by your employees for violations of the FLSA.
Let us help ensure you are protected, call us today!!!
We continue to hear employers say “well, my employees are salaried, so they don’t get overtime.” Failure to understand the FLSA and who is eligible for overtime continues to be a huge problem for employers. In addition to figuring out who is or isn’t exempt from overtime pay, how to calculate how much to pay also confounds small and medium sized business. Even large corporate employers have trouble with FLSA and overtime.
QuikTrip Corp recently had to pay almost $750,000 in back overtime wages to current and former employees in nine states including Kansas and Missouri. A Department of Labor investigation found that QuikTrip violated the FLSA when they did not pay additional overtime based on performance related bonuses.
Federal law does not require an employer provide bonuses to its employees, however if nondiscretionary bonuses are paid to non-exempt employees, the bonus amount must be included in the employee’s regular pay rate to compute overtime. The determination of exempt or non-exempt status is an individual determination based on what the employee actually does, not the position, title, or being paid by a salary. A wrong decision can have a devastating impact on a business financially as well as its reputation.
This determination is extremely important and you should make sure that your HR partner is trained and fully competent to assist you in making it. Don’t be one of the thousands of employers this year that gets caught by the government investigators or sued by your employees for violations of the FLSA.
Let us help ensure you are protected, call us today!!!
Thursday, July 23, 2009
Could you be personally liable for Unpaid Wages?
Unthinkable? Maybe not!
Earlier this month, the Washington Supreme Court held an employer’s CEO and CFO personally liable for willfully failing to pay wages due employees. For those of us, who don’t live, work or operate a business in the State of Washington, why do we care what the Washington Supreme Court decided?
Under Washington state law, “any employer and officer, vice principal, or agent of any employer” who willfully and with the intent to deprive an employee of any part of his wages actually does withhold wages is liable for twice the amount of wages withheld, and the employee’s attorney’s fees and court costs.
The determined that the statute imposes personal liability both on the employer and its officers so as to include those individuals who make the type of financial decision that cause the failure of paying the wages, along with the business, responsible for the violation of the wage laws.
The language of both the Kansas and Missouri Wage Payment statutes has similar language to the Washington Statute. Would Kansas or Missouri Courts make the same decision? Do you want to take the chance? In these economic times which cause business to be “between a rock and a hard place” with cash flow, making sure that you do not run afoul of wage payment laws is critical.
In dissolution of the business or even bankruptcy, when the business may no longer exist, you could still be liable if the courts were to follow the thinking and interpretation of the Washington Supreme Court in applying similarly worded statutes in Missouri or Kansas.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown, J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice. Seek appropriate advice and counsel from competent counsel.
Earlier this month, the Washington Supreme Court held an employer’s CEO and CFO personally liable for willfully failing to pay wages due employees. For those of us, who don’t live, work or operate a business in the State of Washington, why do we care what the Washington Supreme Court decided?
Under Washington state law, “any employer and officer, vice principal, or agent of any employer” who willfully and with the intent to deprive an employee of any part of his wages actually does withhold wages is liable for twice the amount of wages withheld, and the employee’s attorney’s fees and court costs.
The determined that the statute imposes personal liability both on the employer and its officers so as to include those individuals who make the type of financial decision that cause the failure of paying the wages, along with the business, responsible for the violation of the wage laws.
The language of both the Kansas and Missouri Wage Payment statutes has similar language to the Washington Statute. Would Kansas or Missouri Courts make the same decision? Do you want to take the chance? In these economic times which cause business to be “between a rock and a hard place” with cash flow, making sure that you do not run afoul of wage payment laws is critical.
In dissolution of the business or even bankruptcy, when the business may no longer exist, you could still be liable if the courts were to follow the thinking and interpretation of the Washington Supreme Court in applying similarly worded statutes in Missouri or Kansas.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown, J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice. Seek appropriate advice and counsel from competent counsel.
Monday, July 20, 2009
Internet and Employee Privacy
Avenues for employees to complain about their employer, working conditions, co-workers, management etc. have been enhanced by the advent of internet social networks such as MySpace and Facebook. Southwest Airlines fired a Flight Attendant who wrote negative blogs about her employer. More and more employers are attempting to control negative comments being placed on the internet.
BEWARE!!! Employers risk significant legal liability for accessing restricted social networks without proper permission in order to monitor what is being written about the employer on those sites.
Houston’s Restaurants learned this lesson the hard way. Brian Pietrylo, one of Houston’s waiters established a “group” on MySpace with the intent of allowing other Houston’s employees who wanted to “vent about any BS we deal with at work without any outside eyes spying on us.” Mr. Pirtrylo established the site that was “entirely private” and in order to join one would have to be invited.
When one of the employees told a manager about the web site, the manager demanded the password from the employee, passed it on to other managers who after reviewing the site ultimately terminated Mr. Pietrylo and another employee. Houston’s felt the content of the web site was adverse to the core values of Houston’s Restaurant.
Mr. Pietrylo sued Houston’s under the federal Stored Communication Act and also for invasion of privacy. The federal law prohibits unauthorized access to electronic communications, such as posts on the internet. (ie. MySpace, Facebook and LinkedIn). While the factual question in this case was whether Houston’s was authorized to access the site using the password it obtained from an employee, the issue for employers is to avoid the lawsuit altogether!!!
An issue which was not raised was liability under the National Labor Relations Act which prohibits employers from disciplining employees who participate in “concerted activities” to improve their working conditions. The Houston’s case was based in privacy issues.
To protect itself, an employer should also get permission to view an employee’s website. Permission should be written and clearing indicate that permission was give freely without any threat of duress or punishment.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown , J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice.
Seek appropriate advice and counsel from competent counsel.
BEWARE!!! Employers risk significant legal liability for accessing restricted social networks without proper permission in order to monitor what is being written about the employer on those sites.
Houston’s Restaurants learned this lesson the hard way. Brian Pietrylo, one of Houston’s waiters established a “group” on MySpace with the intent of allowing other Houston’s employees who wanted to “vent about any BS we deal with at work without any outside eyes spying on us.” Mr. Pirtrylo established the site that was “entirely private” and in order to join one would have to be invited.
When one of the employees told a manager about the web site, the manager demanded the password from the employee, passed it on to other managers who after reviewing the site ultimately terminated Mr. Pietrylo and another employee. Houston’s felt the content of the web site was adverse to the core values of Houston’s Restaurant.
Mr. Pietrylo sued Houston’s under the federal Stored Communication Act and also for invasion of privacy. The federal law prohibits unauthorized access to electronic communications, such as posts on the internet. (ie. MySpace, Facebook and LinkedIn). While the factual question in this case was whether Houston’s was authorized to access the site using the password it obtained from an employee, the issue for employers is to avoid the lawsuit altogether!!!
An issue which was not raised was liability under the National Labor Relations Act which prohibits employers from disciplining employees who participate in “concerted activities” to improve their working conditions. The Houston’s case was based in privacy issues.
To protect itself, an employer should also get permission to view an employee’s website. Permission should be written and clearing indicate that permission was give freely without any threat of duress or punishment.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown , J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice.
Seek appropriate advice and counsel from competent counsel.
Friday, July 17, 2009
Race Based Employment Decisions
As an employer, you want a diverse and drug-free workplace. So, you test employees to ensure that everyone is drug-free, or get the job or promotion. So…what do you do when you discover that one of your tests or policies has an unintended effect of creating an “adverse impact” on another race? Can you correct your decision by make another decision based on race?
The United States Supreme Court has said NO! Of course, as often happens in Supreme Court decisions, in the decision in Ricci v. DeStefano, the Court provides a lot unsaid, but one thing is abundantly clear. If you are going to use employment tests at any stage of the employment process, you need to be absolutely sure that your test (or policy) is neutral with no intended disparate impact on race, sex, age, national origin or disability.
How you design and validate any test you use is critical, and if done properly, use of a test will never get you or your business in a situation where an employee can prove that you intentionally discriminated based on a protected class. On the other hand, a test that is not validated to have a neutral impact is an open invitation to get hit with a significant court judgment cost your business financially and in image.
See: EEOC Employment Tests and Selection Procedures
Ricci V. DeStefano, 07-1428 (U.S.S.C. 06/29/09)
The United States Supreme Court has said NO! Of course, as often happens in Supreme Court decisions, in the decision in Ricci v. DeStefano, the Court provides a lot unsaid, but one thing is abundantly clear. If you are going to use employment tests at any stage of the employment process, you need to be absolutely sure that your test (or policy) is neutral with no intended disparate impact on race, sex, age, national origin or disability.
How you design and validate any test you use is critical, and if done properly, use of a test will never get you or your business in a situation where an employee can prove that you intentionally discriminated based on a protected class. On the other hand, a test that is not validated to have a neutral impact is an open invitation to get hit with a significant court judgment cost your business financially and in image.
See: EEOC Employment Tests and Selection Procedures
Ricci V. DeStefano, 07-1428 (U.S.S.C. 06/29/09)
Wednesday, July 15, 2009
Monday, July 13, 2009
Disability Claims on the Rise!
The Equal Employment Opportunity Commission (EEOC) has responded to the rise in disability bias complaints over the last year (disability complaints rose to the highest level in 14 years to 19,453 complaints) by filing lawsuits against a small business AND a Fortune 500 company for unlawfully refusing to accommodate persons with a disability.
Sometimes it is extremely difficult to not confuse leave policies with disability rights. In the case of the small Chicago area employer, a customer service employee with severely blocked arteries sought leave to have life saving open heart surgery. Leave was denied due to the employer policy to restrict leave during the business’ most busy times of the year. When the customer service representative took time off for the surgery and recovery, the company processed her has a voluntary termination and refused to reinstate her to employment when fully recovered and given a full medical release by her doctor.
While the employer’s leave policy was most likely legal, when the employee also met the ADA definition of “disabled”, the employer was required to reasonably accommodate her.
In the case of the Fortune 500 retailer, a store greeter was fired allegedly for using a cane on the job. In both cases, the employer did not evaluate the circumstances and application of its policies in light of the duty to comply with other employment laws. Leave policies often conflict with federal laws such as ADA and FMLA not to mention state Worker Compensation laws. Are you sure that you are complying with your obligation imposed by law?
See: www.eeoc.gov
Case # 09-C-3829 (U.S. D.C. No. Dist of ILL, June 25, 2009)
Sometimes it is extremely difficult to not confuse leave policies with disability rights. In the case of the small Chicago area employer, a customer service employee with severely blocked arteries sought leave to have life saving open heart surgery. Leave was denied due to the employer policy to restrict leave during the business’ most busy times of the year. When the customer service representative took time off for the surgery and recovery, the company processed her has a voluntary termination and refused to reinstate her to employment when fully recovered and given a full medical release by her doctor.
While the employer’s leave policy was most likely legal, when the employee also met the ADA definition of “disabled”, the employer was required to reasonably accommodate her.
In the case of the Fortune 500 retailer, a store greeter was fired allegedly for using a cane on the job. In both cases, the employer did not evaluate the circumstances and application of its policies in light of the duty to comply with other employment laws. Leave policies often conflict with federal laws such as ADA and FMLA not to mention state Worker Compensation laws. Are you sure that you are complying with your obligation imposed by law?
See: www.eeoc.gov
Case # 09-C-3829 (U.S. D.C. No. Dist of ILL, June 25, 2009)
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