Headline news: Policies, procedures essential tools in fight against sexual harassment

July 12, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

Last week, former Fox News Anchor Gretchen Carlson slapped Fox News Chairman and CEO Roger Ailes with a wrongful termination and sexual harassment lawsuit in New Jersey Superior Court. The lawsuit alleges that Ailes made “sexually charged comments” to Carlson, including comments about her body and requests for what could be considered quid pro quo sex. According to the allegations, Ailes stated that Carlson and he “should have had a sexual relationship a long time ago . . . .”  Sexual harassment in the office

Carlson’s complaint also attributes numerous other sexually charged statements to Ailes, including comments about her legs and posterior and requests that she wear certain clothes to enhance her figure. Carlson claims that, following her rejection of Ailes’ advances, her contract with Fox News was terminated. Ailes claims that Carlson’s allegations are false and that her contract was terminated due to her television show’s poor ratings.

Irrespective of where the truth lies in this Carlson vs. Ailes matter, it is important for employers to ensure proper coworker conduct in the workplace and to implement thoughtful harassment and discrimination policies to address alleged workplace discrimination. In the coming months, it will be interesting to see what complaints Carlson made to the human resources department at Fox News, whether Fox News investigated Carlson’s complaints, to what extent the complaints were investigated, and the outcome of such investigation.

Companies should have well-defined sexual harassment and discrimination policies that identify inappropriate behavior and the mechanisms for complaining, including to whom the aggrieved employee should complain. Once a complaint is received, employers should thoroughly investigate the complaint, interview the relevant witnesses, and determine whether any remedial action is warranted. Companies in general should discourage employees (both management and non-management) from making improper, sexually charged comments, including many of the types of comments Carlson imputes to Ailes in her lawsuit.

Exercise Aniston-esque restraint when analyzing offensive employee posts

February 22, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

by Ed Carlstedt

This week’s employment law lesson comes to us from the movie Horrible Bosses. In the movie, Julia (played by Jennifer Aniston) is a dentist who employs dental assistant Dale (played by Charlie Day). After Julia uses her boss status to torture and torment Dale for most of the movie, Dale finally records her improprieties and delivers to her the following long-overdue payback speech:

This is what’s gonna happen. I’m going to take a two-week-long, very expensive holiday with my fiancée. Let’s call it a honeymoon. And YOU’RE going to pay for it! Then I’m going to return to a nice, rape-free workplace from now on. Because if you so much as LOOK at my sexy little a**, Julia, I will have yours locked the f*** up you CRAZY B**** WH***! Man, that felt GOOD!

In the movie, Dale’s quote is an amusing moment of vindication and redemption, one that Julia’s conduct warrants. You literally find yourself rooting for Dale as he delivers the obscenity-laced tirade. The notion of telling off a horrible boss without fear of reprisal is every Woman Watching Shocking Message On Social Network Late Nightaggrieved employee’s dream. And in the movie, there was nothing Aniston’s character could do other than sit there and take it. But in real life, what does an employer do when an employee posts similar obscenities about it on social media. Well, if the National Labor Relations Board (NLRB) has anything to say about it, you might have to adopt an Aniston-esque approach to responding to the potty-mouthed employee.

In Pier Sixty, LLC, 362 NLRB No. 59 (Mar. 31, 2015), a managerial-level employee of a catering business (Bob) asked several staff-level employees to spread out during a fundraising event and stop chitchatting. One of the employees was so offended by the manager’s instructions that he posted the following on Facebook:

Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Shortly thereafter, the employer learned about the Facebook post, conducted an investigation, and terminated the employee. In analyzing the employee’s Facebook post, the NLRB found that his comments were protected activity under the National Labor Relations Act (NLRA) because they pertained to concerted activity and union activity. The NLRB found that the employee’s comments (all of his comments, including the F-bombs and accompanying family love-making references) were protected. Therefore, the NLRB found that the employer violated the NLRA when it terminated the employee for his participation in protected conduct, and it awarded him back pay.

Several other cases adhere to the sentiments of the Pier Sixty case, including Three D, LLC v. NLRB, 2015 WL 6161477 (2d Cir. 2015), and Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015). These cases demonstrate that employers should be extraordinarily careful when disciplining employees over social media posts, particularly when the posts or questionable conduct pertains in any way to conditions of employment.

Based on these decisions, the NLRB and courts are likely to broadly define protected activity under the NLRA, even when the employee’s comments are riddled with profanity and make statements damaging to the employer. Thus, just like Jennifer Aniston in Horrible Bosses, employers may be forced to turn the other cheek when confronted with what appear to be obscene and inflammatory employee remarks. To the extent you are an employer considering disciplinary action based on an employee’s social media post, we highly recommend you consult with counsel before taking such action.

Go Scrooge yourself: 5 biz holiday party tips

December 07, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

‘Tis the season for your company’s annual holiday party. And while the notion of drinking, eating and generally enjoying merriment with your coworkers, subordinates, and superiors may seem innocuous, it is anything but. What seems like a festive occasion during the most wonderful time of the year is, if sledded incorrectly, a mine field of potential employment law mishaps. And while I don’t mean to be a Scrooge, this week’s lesson comes from a scene in one of my favorite holiday classics, the movie Scrooged with Bill Murray. What can we learn from this seasonal, cinematic favorite? Well, you can learn that, for purposes of the company holiday party, you should consider “Scrooge-ing” yourself. office holiday party

In the movie, Bill Murray’s character, Frank Cross (the modern day Scrooge), is visited by three ghosts, several of whom transport him back in time to certain life events that froze his heart and led to his hatred for Christmas. During one of his time-traveling trips, Frank visits his office during a wild late-1960s holiday party. People are seen drinking heavily, dancing, flirting with coworkers, and dressing inappropriately, and one woman, Tina (who is wearing a rather skimpy Santa’s helper outfit) is even handing out photocopies of her derriere.

As the coworkers are partying with reckless impunity, Frank passes through the party while completing his work tasks. Frank is wearing his work attire and isn’t drinking. The boss asks Frank to note the ongoing party and implies that he should join. Frank politely declines and advises his boss that he has several projects that he needs to complete. Tina then approaches Frank, hands him a copy of her “resume,” and appears particularly enthused to see Frank. Frank essentially brushes her off and goes about his work. The merry office party, like the little drummer boy, marches on.

So what lessons can we learn from this scene? For purposes of the company holiday party, go Scrooge yourself, at least a little bit. Here are my top five tips for conducting yourself appropriately at the company holiday party, regardless of whether you are the CEO or the most recently hired file clerk.

  1. Dress appropriately. A company holiday party is still a work event. It’s not a Vegas nightclub. Stay away from clothes that will draw a lot of attention to you and provide fodder for your coworkers. If you look in the mirror and question whether your outfit is inappropriate, it probably is. Go change and put on something more appropriate.
  2. Don’t flirt with coworkers (again, it’s not a Vegas nightclub) or engage in other inappropriate conversations such as office gossip, politics, religion, etc. If this effectively eliminates 95 percent of your conversation, you should consider skipping the holiday party and reading some books and newspapers to broaden your conversation base.
  3. Don’t drink excessively (see Vegas nightclub reference here). Know your tolerance and drink in a manner that will permit you to maintain your professionalism. You don’t have to go full Frank Cross, but drink in moderation. If you drink, consider calling Uber or taking a cab home.
  4. Don’t stay until the wee hours of the night (save that for the Vegas nightclub). If history and college tell us anything, it’s that very bad things can happen late at night, especially when people drink. Plan to leave before the scheduled end of the party and stick to that plan. If you feel yourself getting drunk, regardless of the time, arrange for an Uber or a cab and go home immediately.
  5. Don’t assume everyone celebrates a particular holiday (no applicable Vegas nightclub reference). Many holidays are celebrated during December including Kwanzaa, Hanukkah, Christmas, Festivus (see my earlier blog referencing Seinfeld), etc. Be sensitive to the fact that we’re a diverse country with diverse holidays and rituals.

Moral of the story: When it comes to the holiday office party, Scrooge yourself a little bit. In other words, do the exact opposite of what you would do in a Vegas nightclub. Happy holidays!

Per Liar Liar, performing background checks on minors can be major issue

November 02, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

Because I’m a lawyer and because my friends know I love movies, people frequently ask me to identify my favorite lawyer-related movies. My personal favorites are My Cousin Vinny, A Few Good Men, and Liar Liar. To the extent you agree or have lawyer-related movies you like as well, feel free to weigh in. As luck would have it, this week’s employer blog lesson comes from the well-timed juxtaposition of a client inquiry and what has to be my hundredth viewing of Jim Carrey’s Liar LiarSign on the Line

Specifically, a client in the hospitality industry recently asked whether it had to obtain parental or legal guardian consent to conduct background checks and drug screens on its minor employees. Particularly in the summer months, many restaurants and hotels hire minors. Unfortunately, many employers mistakenly use the same hiring materials regardless whether the employee is a minor or has reached the age of majority. Thus, the employers ask their minor employees to sign the required consent forms. But do these minor employees have the legal capacity to execute these forms?

This is where Jim Carrey’s eccentric, ethically challenged character in Liar Liar can teach employers a lesson. As you may recall, Carrey represents a philandering wife in her divorce proceeding in which she seeks half of her soon-to-be ex-husband’s multi-milliondollar estate. Carrey’s client, however, signed a prenuptial agreement containing a fidelity clause. A fidelity clause essentially provides that if one spouse cheats on the other, the cheating spouse isn’t entitled to recover certain identified assets in the divorce proceedings.

As luck would have it, Carrey’s client had slept with at least seven other men and the husband had audio footage of the wife “making love” to the most recent paramour. Carrey, who early in the movie was not exactly morally constrained, was fully prepared to have his client and her paramour lie about their sexual relationship. But then, Hollywood magic intervenes. Carrey’s young son, who was tired of his father’s unfulfilled paternal promises, makes a birthday wish that for one day Carrey cannot lie. The wish comes true, coincidentally, on the very day of Carrey’s family law trial.

As a result of his son’s wish, not only can Carrey not lie, but he can’t allow his clients to provide testimony that he knows is a lie. Indeed, Carrey impeaches his own star witness on the stand, causing the paramour to admit to the “lovemaking” with Carrey’s client. The movie obviously contains a more colorful description of the relationship, but I like to keep things PG. Once the paramour admits to the relationship, all hope for his client’s case appears lost. But then, while reviewing his client’s birth certificate, Carrey has an epiphany.

From the birth certificate, Carrey realizes that his client lied about her age so that she could get married. That is, Carrey’s client claimed she was 18 at the time she married the husband, when in fact she was only 17. As the name implies, Carrey’s client signed the pre-nuptial before she got married. Thus, she was a minor at the time she signed. Therefore, the agreement was void and, as Carrey put it, “[t]he fact that my client has been ridden more than Seattle Slew is irrelevant.” Once the agreement was voided, his client received half of the marital estate. “He shoots, he scores.”

So where is the lesson for employers here? Just like Carrey’s client in Liar Liar, minor employees don’t have the legal capacity to consent to background checks and drug screens. Employers hiring minors should ensure that their new hire packets include appropriate parental or legal guardian consent forms and that the forms are signed and returned.  Without such consent, employers may unintentionally be breaking various state and federal laws applicable to these areas. So, as Jim Carrey tells his recidivist criminal client after he robs someone at knifepoint, “Stop breaking the law, [expletive].”

If you have questions about background checks, drug screenings, parental consent forms, or other employment related issues, contact EntertainHR contributing writer Ed Carlstedt or another attorney with FordHarrison LLP. Ed works in the firm’s Tampa, Florida, office and can be reached at ecarlstedt@fordharrison.com.

“It’s not me, it’s you!” Seinfeld lessons on candid employee evaluations

July 27, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

I confess, I’m a Seinfeld junkie. I’ve watched every episode multiple times and literally love every single oneeven the finale (I know, I know, I’m in the vast minority, but I’m committed, you could at least give me that). To this day, I watch Seinfeld’s re-runs over and over again, which I’m sure makes me cute in a geeky, boy-next-door kind of way, at least that’s what I tell myself. My wife just rolls her eyes and continues Facebooking, Tweeting, Instagramming, Pinteresting, Ashley Madisoning (actual users note recent security breach and structure assets accordingly), or whatever other social networking it is she does during my near daily half hour of “Ed time.” But irrespective of Seinfeld’s purported outdated-ness (likely not a word, but you’re smart, you understand), the fashions, Jerry’s updating (dating someone much hotter than you), or the fact that it is primarily intended for comedic purposes, employers can glean valuable lessons from Seinfeld if they watch closely.  Performance Evaluation

In Seinfeld episode number 140 (“The Fatigues”), Elaine, serving as interim company president while her boss is in Burma, is all set to can an employee for poor performance. Prior to meeting the employee, Elaine seems almost giddy to figuratively drop the guillotine on the unsuspecting employee. But once Elaine confronts the employee in person, Elaine can’t bring herself to do the deed, likely due to the fact that the employee is wearing fatigues, looks deranged, and has a spooky, guttural voice. Rather than deliver the news, Elaine promotes the employee from a mailroom position to a copywriter position.

Once in the copywriter position, the employee does such a poor job that Elaine decides to:

(A) counsel him;

(B) put him on a performance improvement plan;

(C) demote him;

(D) terminate him; or

(E) promote him.

While Elaine should have considered options (A) through (D), as any fellow Seinfeld-ian (I make up words like they’re “bodily functions”also a Seinfeld reference for the Seinfeld-initiated) knows, Elaine promotes the ill-performing employee. Elaine’s promotion backfires, however, when the other key employees resign leaving Elaine and Corporal Fatigues to run the catalog business.

So what’s the deal with performance evaluations?

While this situation may seem like something that could never happen in your business (because yes I’m sure all of your businesses are perfectly run and that’s why employment lawyers are so busy right?), the cold hard fact is that supervisors routinely have problems candidly evaluating the employees under their charge. While I understand that it is very difficult to deliver bad news to your employees about their performance issues (unless you’re sadistic or an attorney), trust me it’s far more difficult to endure the attorneys’ fees and costs you’ll incur defending an employee discrimination claim from an employee that you frankly treated way better than you should have and who was rightly terminated for poor performance (even if the reviews don’t reflect it).

I’ve seen and heard it so many times:

Employer: Ed, Employee X (we’ll call him George) sucked. George was totally useless, everyone knew it, he slept with the cleaning service girl, so we had to terminate him.

My response: That’s fantastic! I’m sure George’s reviews will reflect his poor performance. Please send them to me.

[Performance evaluations sent. Ed’s office pens are snapped as Ed notes that George’s reviews reflect that George consistently met or exceeded expectations. *Sigh.*]

Then, there’s always the awkward attorney-client conversation, “If George was so bad, why don’t the reviews reflect it?” I normally approach this conversation in somewhat delicate fashion (as I’m diplomatic like that), but you get the picture. It’s not an easy conversation. The employer’s answer is virtually always the same, it’s some species of: I didn’t want to hurt George’s feelings; I didn’t want to jeopardize George’s career, family, livelihood, etc; I spoke with George about the issues but didn’t want to put it in his evaluation or in his file.

Serenity now, insanity later (so make evaluations accurate now, no matter how uncomfortable it is)

This is the part where I tell you nice guys (and girls) finish last. Plaintiffs’ lawyers know it’s human nature to give reviews that are more favorable than the employee’s actual work product. Plaintiffs’ lawyers use these evaluations like a freshly sharpened spear to kill the employer’s defenses. Plaintiffs’ lawyers rely upon the inflated reviews to show what a wonderful employee George was and that his termination could only have resulted from the decisionmaker’s discriminatory views on age, gender, race, national origin, disability, whistleblowers, or “low talkers” (take your pick). Guess whose head winds up on top of the spear? Not George’s headthe bad employee, the bad boyfriend, the bad son, the bad tipper. You guessed it, the decisionmaker’s head, along with a noticeable dent in the employer’s bank account.

The moral of the story, when it’s accurate, supervisors need to be brutally (and yes, I mean brutally) honest with underperforming employees. That means:

  • Telling underperforming employees, it’s not me, it’s you (see, Seinfeld references represent at least 20% of my lexicon).
  • Giving underperforming employees specific examples of their shortcomings. Counseling sessions, absent compelling circumstances, should be memorialized in writing, and the employee’s performance issues should be reflected in the employee’s evaluations.
  • Documenting if an employee isn’t meeting expectations. Save the nice guy/girl routine for the company picnic or holiday party, maybe both. But at work, you need to be honest with your employees about their performance, even if that means ruffling a few feathers and potentially sacrificing what would otherwise be a good personal relationship.
  • Contacting your friendly neighborhood FordHarrison lawyer and we’ll walk you through the situation.

By the way, as for the advice contained in this blog: it’s real, and it’s fantastic.