Sexual Harassment Revisted

Sexual harassment has taken over headlines again.

First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed.  To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).


Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.


Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue.  By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint.  Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment.  Typically, a company puts such a policy in an employee handbook or on a company intranet.  The key elements of an appropriate investigation include:

• interviewing the alleged victim, harasser and any witnesses; and
• taking prompt remedial action if the allegations can be substantiated.

The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct.  A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.

A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures.  During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.

NLRB Posting Deadline Now Delayed

After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

So, the NLRB still intends to implement the rule.  Curiously, the NLRB made no mention of the federal court litigation challenging the rule.

NLRB Posting Rule and Current Status

On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement.  But for now, employers should presume that they are to comply with this rule.

ICE turning up the heat

Last week, the U.S. Immigration and Customs Enforcement ("ICE") announced a new initiative targeting over 1000 employers in all 50 states.  This initiative will include site visits for document inspections.  According to ICE, "the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny".  Essentially, this means that ICE is stepping up its efforts to audit employers.  Any company is potentially subject to being audited. 

Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws.  This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.

A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker.  The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.

If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.

In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations.  If your company is contacted by ICE, you should contact counsel immediately.

No surprise: EEOC charges way up

The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.

A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.

A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.