What now? 5 steps to take if your probe doesn’t corroborate harassment allegations

December 12, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

The avalanche of complaints emboldened by the #metoo movement shows no sign of relenting, and many caught in its crosshairs have been unceremoniously fired or forced to resign based on allegations of harassment. Of course, when such allegations arise in the employment context, employers have a duty to investigate and to take action when there is evidence of serious misconduct, but what if your investigation does not corroborate the allegations? What then?

As an initial matter, the fact that your investigation does not corroborate allegations of harassment does not mean that they were false or that the complainant can or should be disciplined for making unsupported accusations. To a large degree, harassment is subjective, and what Documents Searchis offensive to one person may not be offensive to another. Legally, conduct must be both objectively and subjectively offensive, and severe or pervasive, and based on a protected characteristic (such as sex, race, or religion) before it may be considered harassment.

While employers usually apply a less stringent standard than the courts in determining whether sexual harassment has occurred, there are still a variety of circumstances when an investigation may not corroborate  sexual harassment allegations, even though the complainant provided an accurate description of the conduct and his or her subjective reaction to the conduct. For example, an investigation may reveal that the incident complained about wasn’t based on a protected characteristic. Alternatively, an investigation may reveal that the evidence is inconclusive because there are no witnesses or other evidence to either support or refute the allegations. In other instances, an investigation may corroborate that some type of unprofessional conduct indeed occurred, but the conduct complained of wasn’t serious enough to establish a violation of the company’s anti-harassment policy.

Whatever the reason, an investigation that yields a finding of “no harassment” still has the potential to expose your company to unnecessary legal risk if not handled appropriately, so here are five steps to follow when navigating this tricky situation:

1. Even if you don’t find a violation, ask the alleged harasser to sign a copy of your company’s anti-harassment policy. This will have the dual benefit of reminding the alleged harasser of the importance of appropriate workplace conduct and the consequences for violating the company’s policy, and it will help your company defend against future claims by showing that the policy was made known to employees and you made reasonable efforts to prevent and correct harassment in the workplace.

2. Thank the complainant for bringing the issue to your attention and assure him or her that your door is always open if problems arise in the future. The complainant will likely be discouraged or frustrated with the outcome of the investigation, but you can help lessen the sting by emphasizing that the company appreciates being made aware of the situation and takes all such complaints seriously.

3. Document your investigation thoroughly, including the various steps you took to reach your conclusion and the basis for concluding there isn’t enough evidence to establish a violation of your company’s anti-harassment policy.

4. Stress that retaliation is prohibited. You should stress your company’s nonretaliation policy to both the complainant and the alleged harasser. In addition, follow up with both of them on a regular basis (such as in 15, 30, 60, and 90 days) to find out whether there have been any further issues or problems between them.

5. Develop a plan for avoiding future problems. Even if your investigation determines that no disciplinary action is warranted, you should develop a plan for avoiding future problems between the employees. Is the problem based on a personality conflict? Can any steps be taken to improve communication and avoid misunderstandings between these employees? Would additional training help? If the relationship is beyond repair, is it possible to separate the parties in a way that would not trigger an accusation of retaliation or unfair treatment? Consider each of these issues, as well as the employees’ input and suggestions, to determine how best to move forward after the investigation.

Not every investigation will result in a finding of harassment or warrant disciplinary action for violating company policy, and that’s a good thing. By following these five steps, you can communicate the outcome of your investigation with compassion and fairness while protecting your business and, hopefully, avoiding future problems down the road.

Daddy’s Home 2—fisticuffs in the workplace

November 28, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

While the holiday season can be a time of great joy and celebration, it also can be loaded with stress. Indeed, the pressures of preparing for the holiday and spending an inordinate amount of time in close quarters with friends and familyBusinessman trying to resist huge male fist and move it can bring long-simmering feuds and frustrations to the surface. This concept is handled with humor and heart in Daddy’s Home 2. Unfortunately, as the film illustrates, such private squabbles can sometimes spill over into public places including the workplace, which is yet another reason for employers to be well-versed on conflict resolution tactics and workplace violence issues.

The second film picks up where the first left offwith our characters navigating the sometimes tricky terrain of forming a modern, blended family. Brad and Dusty (Will Ferrell and Mark Wahlberg) seem to have figured out how to work together in their respective roles of stepfather and father to raise the kids they both love dearly. However, when Brad’s hyper-affectionate, beloved father (played by John Lithgow) and Dusty’s estranged, hyper-masculine and emotionally distant father (played by Mel Gibson) come to town to celebrate Christmas, it’s a recipe for jealousies and conflicts.

When severe winter weather leaves our characters stranded in a movie theater with countless others, the tensions come to a head with theater employees looking on as certain family members attempt to duke out their differences. While the scene makes for an amusing holiday spectacle on the big screen, it also illustrates how quickly tensions can escalate and  employers (particularly those regularly dealing with the public in their day-to-day operations) may find themselves dealing with the unexpected. Indeed, nearly two million Americans each year report having been victims of workplace violence. Here are five employer tips for dealing with workplace conflicts:

1. Establish policies and complaint procedures for dealing with conflicts between employees and those involving any members of the public who may come into the workplace.

2. The Occupational Safety and Health Administration (OSHA) strongly recommends that employers establish a zero-tolerance policy regarding workplace violence. This policy should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel. Employees should know the policy and understand that any workplace violence complaints will be investigated and remedied promptly.

3. Early intervention is key. Train employees on the policies and advise them to report potential issues to management and/or human resources early and before any conflicts have an opportunity to escalate.

4. Assess the workplace to identify methods for reducing the likelihood of an incident occurring, and establish a plan in the event that an emergency situation arises. Consider OSHA-recognized risk factors such as whether employees exchange money with the public, work with potentially unstable individuals, work alone or in isolated areas, work where alcohol is served, or work late at night or in high-crime areas.

5.  Establish a workplace violence prevention program. OSHA provides guidance on establishing such a program as well as various online training and other resources.

The bottom line is that employers have a duty to provide a workplace free from serious recognized hazards. It’s important to have the necessary policies and procedures in place to deal with potential emergencies, including workplace violence issues. With that said, we wish all of you a safe and joyous holiday season.

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

10-step plan for fair and balanced approach to preventing workplace harassment

May 17, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

In less than a year, Fox News has lost its founder and one of its most well-known anchors due to widespread sexual harassment allegations. Fox News recently reported that 20th Century Fox paid $10 million in sexual harassment settlements in the first quarter of 2017 alone. How can Fox News be proactive in avoiding harassment claims in the future? Prevention is the best tool to avoiding claims. Here are some essential steps to prevent and correct unlawful harassment.  Stop Sexual Harassment red stop sign held by a female

1. Disseminate a workplace harassment policy that complies with state and federal anti-discrimination laws. The policy should encompass all forms of unlawful harassment based upon all protected classes, not just sexual harassment; although sexual harassment should be separately discussed within the policy.

2. The policy must be communicated to all employees at the time of their hire and should also be posted in the workplace. Employees should be given an acknowledgement to sign so that they acknowledge that they have read and that they understand the policy.

3. The policy must contain an effective complaint procedure that affords the employee bringing the complaint the opportunity to bypass the alleged harasser; however, the complaint procedure should not be too broad so as to encompass everyone at the organization.

4. The policy must contain an anti-retaliation provision, ensuring that the employees are aware that they will not be retaliated against for complaining internally, filing lawsuits/charges, or participating in an investigation.

5. The policy must not guarantee confidentiality; rather, it should state that, to the extent possible, complaints will be kept confidential. Obviously, an employer can’t keep a complaint confidential to the extent it must share the allegations during the course of an investigation. An employer, however, can guarantee that it won’t share the allegations with those who don’t have a reason to know them.

6. Employees (both managers and employers) should be trained on preventing sexual harassment and other forms of harassment at the time of hire and every two years.

7. Don’t require employees to put their harassment complaints in writing.

8. Respond to complaints immediately by conducting thorough and unbiased investigations.

9. Take appropriate remedial action following substantiated complaints of unlawful harassment by issuing disciplinary action commensurate with the substantiated conduct and continuing to monitor the relationship and the alleged harasser’s conduct toward others.

10. Keep your eyes and ears open and mandate that your supervisors do the same–if they see something, they must say something. Moreover, rumored allegations also should be explored.

Fox News & Bill O’Reilly—best practices for conducting internal workplace investigations

May 01, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

Bill O’Reilly’s reign as a Fox News favorite came to an abrupt end amid a series of sexual harassment allegations against him. After the most recent allegations, Fox News hired large law firm Paul Weiss to conduct its internal investigation.    Employment Incident  Investigation Form

Workplace investigations are tough, and if your organization can’t afford (or simply does not want) to hire a legal giant to handle the internal investigation, there are some key steps to ensure the investigation is fair, impartial, and efficient.

Before we start, you should know there are no clear, one-size-fits-all approach to investigationseach probe must be tailored to the size, structure, and resources of your organization. Even so, organizations often fail to conduct a sufficient investigation by delaying the process, failing to take the complaint seriously, focusing on perception rather than the facts, failing to follow through, and neglecting to document its efforts. By following the tips in this article, hopefully you can avoid these common pitfalls.

First, it’s important to know what kinds of complaints legally require an investigation or when conducting an investigation would provide a defense against later claims:

Getting started

If an employee of your company says, “I need to talk to you…” there are some important best practices:

  1. Ask the person to summarize the issue.
  2. Ask yourself if you are the correct person to speak with the employee about the issue. If you are, then continue the conversation, making sure to document the individual’s concerns. If you are not the correct person, call the appropriate person right away and set up a time for the reporter to meet with the appropriate person.
  3. If you are the person to take the employee’s initial concern, remember that you are not the employee’s friend or confidantyou are an extension of the organization, and information you learn may impute knowledge on the organization.
  4. Be sure to emphasize the organization’s open-door policy and its policy against unlawful retaliation.
  5. Actively listen to the facts of the complaint. Remember, at the end of the day who, what, when, and where are necessary components to a proper workplace investigation. Be sure to take notes. Summarize the facts as told to you and once completed, go back and have the individual read what you’ve written for correctness. If possible, have the person draft a statement and sign and date it.
  6. If you need to, ask clarifying questions, but don’t second-guess or question the individual’s recollection of events.
  7. Finally, at the end of the conversation, thank the employee for coming forward, and state that HR will look into the issue further and determine the need and scope of further investigation.

Investigation strategy

I’ve listened to the complainant’s concerns, now what? After the initial conversation it’s time to develop an investigation strategy.

  1. Consider the need for immediate preliminary action or “pending investigation.” Consider whether the employee or accused will be on some leave of absence or scheduled time off, which will allow time to conduct a thorough investigation. Also, consider temporarily transferring or reassigning employees.
  2. Identify the need for an investigation. Was there a formal internal complaint or grievance? A charge, inquiry, or audit by an administrative agency? If so, these are examples of the types of complaints that companies should take seriously and immediately launch an investigation.
  3. Determine the goals of the investigation. Determine whether there are claims of illegal activity. Was company policy violated? If the alleged behavior continues, will it affect the company’s morale or result in productivity decline? Is the goal to show compliance with the law? Having a clear set of goals for the investigation will help direct you in determining who to speak with and what documents to collect.
  4. Assess the potential disadvantages. Consider whether the cost, time, and resources are worth conducting the investigation. Will the investigation disrupt your organization’s morale or productivity? Will the investigation yield negative publicity?
  5. Select the appropriate investigator. Make sure to select an investigator at the appropriate level given the severity of the allegations. Is the investigator credible? Is she insulated enough from the actors and allegations that she will be able to maintain confidentiality? Does the investigator have knowledge of your organization’s business, policies, procedures, and applicable legal issues?
  6. Identify and interview witnesses. Start by identifying those that must be interviewed, i.e. the accused, anyone the complainant has identified as a confidant, and any witnesses to the claims. Give special consideration to the order in which to conduct the interviews, and what happens if/when the allegations are made public. Consider conducting interviews in a private location that will not disturb the normal operations of the business. Be sure to allot for enough time between interviews, so as to prevent interviewee overlap. For every interviewee, including the complainant and the accused, affirm that the company has not yet made any determination as to the claims.
  7. Identify and gather documents. Collect any notes the complainant made. This may include a journal or calendar of important events. Identify the rules, policies, and procedures implicated. Consider whether to involve IT’s assistance with preserving e-mail, computer hard drives, access cards, and phone logs.
  8. Prepare an investigation roadmap. As you interview witnesses and identify important documents, create a timeline of the known facts and allegations. When interviewing witnesses, determine whether to conduct them in person or by telephone. Also, prepare an outline of questions. Remember the importance of developing who, what, when, and where.
  9. Consider confidentiality and security. Determine whether it’s vital to the conversation to tell the witnesses what the allegations are. If you do share the nature of the allegations, determine early how much you’re going to tell.
  10. Anticipate potential detours, red herrings. Prepare to be surprised.

The thoroughness of your internal investigation matters–not only because it demonstrates that claims against your organization are taken seriously, but because people forget the specifics (and they lie!). Having a well-developed investigation strategy and following our simple, but effective, best practices can help prevent investigation blunders.

Rachel Kelly is a Senior Associate in FordHarrison’s Dallas office. Rachel can be reached at rkelly@fordharrison.com or 214-256-4702.

What did Ryan Lochte do? 8 tips for waterproof investigations

September 06, 2016 - by: Robin Kallor 1 COMMENTS
Robin Kallor

Despite the conclusion of the 2016 Summer Olympics, Ryan Lochte is still “under water” with questions still looming after Rio police reports that the American gold-medal Olympian fabricated a story about being robbed at gunpoint in Brazil. Lochte initially reported that he and three other U.S. swimmersJames Feigen, Jack Conger, and Gunnar Bentzwere robbed at gunpoint as they were returning from a party.  Hand with magnifying glass.

Brazilian authorities reported a markedly different account: The American swimmers vandalized a gas station and then got into an altercation with security guards. Since the news broke, Lochte changed his tune a bit to the press and admitted that he exaggerated his initial story, but the International Olympic Committee set up a disciplinary commission to investigate Lochte and the three other U.S. swimmers. This commission will determine what consequences, if any, the swimmers will face.

Like any workplace investigation, the IOC will need to determine who should conduct the investigation, who will be questioned as part of the investigation, the commission will review whatever video and photographs of the incident exist and then it will make conclusions and determine the appropriate action to take, if any, following these conclusions.

What if Lochte was an employee who was alleged to have engaged in this conduct while on a business trip?  In the workplace, as a general rule, an employer has a legal duty to conduct a prompt, thorough, and unbiased investigation when it becomes aware of improper conduct. For example, if the employee was terminated without any investigation, the employer is exposed to a claim by that employee. If the conduct is ignored, and then occurs again, the employer is exposed to claims of negligent supervision. If an employee complains about harassment by another employee, federal and state anti-discrimination laws mandate a prompt, remedial, and unbiased investigation.

When done properly, workplace investigations and prompt remedial action can serve to defend against employment-related claims and preclude recovery. However, when done improperly (e.g., when disciplinary action is taken on the basis of a poorly conducted investigation, the evidence doesn’t justify the conclusions reached, or  there is a failure to take appropriate action following the investigation), there are significant risks of exposure. Because these investigations are tricky, here is a list of guidelines that employers should keep in mind:

  1. Determine interim steps.  Depending upon the nature/gravity of the conduct, it may be suitable to place the accused on a paid administrative leave pending the outcome of the investigation.  It is important to reassure the employee being investigated that no conclusion of wrongdoing has been made, that the investigation will be unbiased and will conclude as promptly as possible.  The complaining party and the accused should be reminded of the organization’s policy against retaliation.
  2. Choose an investigator.  The investigator must be impartial and must be well trained.  Who is best suited to conduct the investigation?   Is there someone at your organization who has the experience and the time to promptly and thoroughly investigate the issue?  Is that person too close to the accused or the complaining party or the incident itself that could create a perception of bias?  If so, perhaps referring the investigation to an outside investigator would be prudent.  Neither the accused nor the complaining party should have any role in the investigation and should not have any supervisory control over the investigator.
  3. Review documents.  Review all relevant written policies as well as all documents that may be relevant to the incident/incidents that you are investigating.  Consider reviewing personnel files of the accused and the complaining party.
  4. Plan the investigation. Prepare a checklist of all witnesses you plan to interview make sure to outline your questions beforehand.  While you want to plan, you will also need to be flexible enough to speak to others/ask questions not on the list, as the investigation unfolds.
  5. Conduct witness interviews.  Interview the complaining party, the accused and every witness whose name was provided by the complaining party, the accused or if any other witness lists them as persons who witnessed the incident/incidents or could corroborate either party and who was present during all of the complained about conduct.  There may be a need to conduct additional interviews with witnesses already interviewed based upon information later discovered.  Questions should be open-ended (who, what, when, why, how, who was present, etc.) and the investigator should take note of body language of the witnesses.  The investigator should also request all relevant documents from witnesses during the course of the investigation.  The tone of the interviewer should be professional at all times.
  6. Draw conclusions.  Conclusions will often require credibility determinations.  Credibility determinations will require consideration of the following:  Is the witness’ version of facts believable?  Does the witness seem to be telling the truth?  Does the person have any reason to lie?  Are there documents or other witnesses that support this witness’ version of the events?  Has the accused had a history of similar behavior in the past?  Investigation reports should include answers to each of these questions and indicate how the credibility determinations are derived.
  7. Prepare the investigation report.  The report should include a list of documents reviewed, list of witnesses interviewed, the nature and scope of the investigation, a summary of the investigation, as well as conclusions and recommendations.  The report should specify how the conclusions were reached and why the recommendations are made.
  8. Communicate findings to complaining party and accused.  In the event the investigator concludes that there was wrongdoing, then appropriate action should be taken and documented and the relationship should be further monitored.

Undoubtedly, we will not be spared any details of the findings of the Lochte investigation, and whether the investigation will result in ramifications for the 2020 Summer Olympics in Tokyo. “Thankfully,” his narcissism guarantees that, if we are not hearing about the incident in Rio, we will be hearing about his performance in this season’s Dancing With the Stars airing soon.

#Fired: Post a tweet, lose your job

August 23, 2016 - by: Katie O'Shea 0 COMMENTS
Katie O'Shea

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former employers) for their tweets or other social media posts.  Tweet

One recent example was a loan officer from Michigan who crafted a racist tweet, not worth repeating here, following First Lady Michelle Obama’s speech at the Democratic National Convention. Twitter users saw the tweet and tracked down the home loan company the woman worked for. The result was a flood of tweets directed to the company’s Twitter profile calling their attention to the tweet and asking if the employee’s views represented the company’s values.

One individual tweeted to the company, “you can’t tell me someone who holds this view on the @FLOTUS is not abusing her powers on other minorities.” Others went straight to the point and asked the company, “Will you continue to employ someone who is racist?”

The company saw the tweets and immediately took action by issuing a statement in response on Twitter. The company denounced the woman’s reprehensible comments and stated she was no longer employed with the company. The company emphasized that they do not condone such comments, which were made on the employee’s personal account.

Similarly, a national bank employee lost her job earlier this summer after a Facebook rant filled with racist remarks. The employee’s profile listed that she was an employee of the bank, and social media users immediately began sending the bank thousands of comments about the post. The bank investigated the post and terminated the employee, issuing a statement that they were aware of the reprehensible post on Facebook and the employee had been terminated. In this instance, many customers even threatened to close their accounts with the bank.

The public appeared particularly attuned to this issue given that in 2013 the bank was ordered to pay more than 1,000 African American job applicants over $2 million in back wages and interest after a judge found one of the company’s offices had discriminated against them based on their race.

Even celebrities like Blake Shelton, a judge on the popular singing competition show The Voice, have been called out by the Twitter masses for their tweets. Just last week, the country singer tweeted what some have dubbed a “non-apology” for past racist and homophobic tweets. Some of the tweets in question stem as far back as 2008, proving once again that the Internet never forgets.

With social media, it’s possible for a tweet or post to go viral immediately, and companies must be attuned to their social mentions and quickly take action if problematic posts surface. As with the bank case, delaying an investigation and taking action could cost a company customers and create bad PR.

If a company is considering taking action against an employee for a problematic post on social media, HR should be sure to immediately save or print a copy of the post in question in case the employee attempts to delete it. Employers also should keep in mind that some states might limit an employer’s ability to investigate social media or take action against an applicant or employee based on off-duty conduct.

Of course, employers also must be cognizant of the National Labor Relations Act (NLRA) in analyzing employees’ social media posts. In recent cases, the National Labor Relations Board (NLRB) has found that certain employee posts, and even rants, were protected activity under the NLRA because they pertained to concerted activity and union activity. The NLRB has found that employers violated the NLRA by terminating employees for participation in protected conduct, and has awarded back pay.

In light of these recent tweets, it’s important for employers to evaluate their social media policies and consider how they might respond to an employee who makes a racist, sexist, or otherwise inappropriate remark on a personal social media page. Employers should be extremely careful when disciplining employees over social media posts, however, especially if the posts pertain to conditions of employment. Employers considering disciplinary action or termination based on an employee’s social media post should act swiftly but consult with counsel beforehand.

Learning from Orlando: addressing potentially violent employees

June 21, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

In the nine days since Omar Mateen opened fire in the Pulse nightclub, killing 49 individuals and injuring several others, a report surfaced that Mateen’s violent nature and potential to do harm to others was readily apparent to at least one of his co-workers. According to the Los Angeles Times, Daniel Gilroy, who worked with Mateen for about a year as a security guard at PGA Village South in Port St. Lucie, FL, complained multiple times to their employer that Mateen was dangerous, that “he didn’t like blacks, women, lesbians and Jews.” Gilroy claims his employer’s failure to respond to the complaints left him with no choice but to resign. “I quit because everything he said was toxic,” Gilroy to USA Today, “and the company wouldn’t do anything. This guy was unhinged and unstable. He talked of killing people.”  New York City

Last week, in the immediate aftermath of the Orlando shooting incident, Marilyn Moran, partner in the Orlando office of Ford Harrison, offered employers advice on how to help employees in crisis through empathy and counseling, while remaining compliant with state and federal employment laws. The situation also highlights another issue that confronts employers on a daily basis: the potentially violent employee.

Reports of a potentially violent co-worker bring many difficult questions to bear. What are the nature of the alleged comments? Who is the source of the complaint and does that person have ulterior motives? Most important, should we get law enforcement involved or can we handle this ourselves? Because most employers will encounter such a situation at some point, it is best to formulate a plan of action and train your front level managers/supervisors on how to respond.

First and foremost, human resources professionals and managers must remain engaged with their workforce. Allowing yourself to detach from your employees for great lengths of time, whether it’s to catch up on paperwork or tend to other issues, may permit small problems to fester into big ones. This is not to say you can control or prevent a violent employee simply by seeing him/her on a regular basis. What you can do, however, is assist your managers in recognizing and addressing any potential issues before they become unmanageable or more threatening.

Remaining engaged also will help you ferret out the real problems from the noncredible complaints. As with any complaint investigation, if you have no personal experience with the alleged violent employee or the complaining employee, you will be at a severe disadvantage in evaluating character and credibility. When the human resources department cannot gain face-to-face exposure to employees as easily, such as in larger workforces or employers with multiple locations, it is critically important to have managers who are actively engaged with the employees they supervise. This does not mean managers should attempt to be their employees’ best friend. They should, however, remain present in the workplace, approachable, and maintain the highest levels of credibility with their employees at all times. This will serve to foster open communication about any issues arising about or between employees.

Employers also should maintain clear and well-disseminated policies prohibiting violence or threatening conduct toward coworkers and third parties. This includes verbal threats of potential harm. Employees should know to whom they should report this kind of conduct, and employers should investigate all complaints.

Employers may be hesitant to take action against an employee due to concerns that the employee may claim disability discrimination. While mental disabilities are protected, direct threats to co-workers and others are not. Employers should be sure not to take action against an employee simply because he/she has a mental disability that has shown the potential to result in violent or threatening behavior in others, such as bipolar disorder. Actions should be based on the employee’s own actions exhibiting a potential threat and not the employer’s assumptions about what might occur.

If a complaint or other situation appears to be particularly serious, do not hesitate to involve law enforcement officials. Do not underestimate complaints of violence or threatened violence to avoid a “scene.” Law enforcement are specially trained to handle potentially threatening situations and/or individuals. They can help assess the seriousness of a reported threat and determine the appropriate response. At the very least, law enforcement will create a report documenting the situation and the employers response. Employers owe it to their employees and their communities to take every effort to address these issues head on.

 

 

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.

Keeping it real: litigation insights from ‘Making a Murderer’

January 20, 2016 - by: Matt Gilley 0 COMMENTS
Matt Gilley

It’s mid-January, and I’m sitting in my office writing this post while snow falls outside. (Yes, we get snow in South Carolina and, yes, it terrifies us.) The snow, however, reminds me of the frozen northern Wisconsin landscapes featured in my latest binge-watching favorite, Netflix’s Making a MurdererA peek inside the courtroom

If you’ve not seen it yet, Making a Murderer is a fascinating serial documentary about the murder trial of Steve Avery. Mr. Avery swears by his innocence and defends the murder charge by claiming that the local sheriff’s office framed him. DNA evidence had exonerated Avery of a prior rape conviction (or at least raised sufficient doubt to require his release from prison). He sued the county for his earlier conviction, and soon after key depositions were taken in his lawsuit, a young woman went missing. Key evidence was found near Avery’s home (including charred remains of the missing woman), and he was arrested. He claimed someone set him up and that the police overlooked evidence of his innocence.

This post is not about his innocence or guilt. Instead, I want to bring readers’ attention to the show because I appreciate the honest way it depicts how trials really play out. If you’ve never been through a trial, Making a Murderer is a good place to start to get a feel for how it actually happens. You won’t see a flashy Corbin Bernsen or an upright Gregory Peck delivering smooth, flawless questions and orations. Instead, you’ll see well-prepared, determined, and competent lawyers in the real work of a real world trial.

Here’s a few takeaways for fans of the show:

First, Making a Murderer has the advantage of being a 10-episode serial documentary, which allows plenty of time for the investigation, pretrial process, and trial to play out for viewers. Instead of very short snippets, the format gives you a chance to see longer excerpts from many neglected yet important parts of the litigation process.

Second, you get to see what witness examination really looks like. The prosecutor prefers to examine witnesses while seated at counsel table. The defense attorneys prefer to stand at counsel table while examining witnesses. Witness examination is hard work, and even a well-prepared examiner will have to pause, think, go back to clarify testimony, and (most of the time) stay in place. High drama is very rare and, at times, the testimony seems pretty boring. Nevertheless, the show demonstrates how difficult it is to piece together a case or defense.

Finally, the show captured the gut-wrenching wait for a jury verdict. In the show, both sides’ lawyers, family members, and other interested parties wait for word that the jury has reached a verdict. They are tethered to their phones and sit (almost in agony) waiting for the word. From the time the jury is out until the verdict is read, no one is doing much of anything, but at the same time they (and you) are on the edge of your seat. The same is true of any jury trial: Waiting for a group of complete strangers to come back and render judgment on a dispute that you’ve been living for several years is draining and extremely tense.

Even though Making a Murderer features a criminal trial, it offers a welcome and realistic portrayal of the judicial process that we rarely get from popular culture. We’ve all heard from parties in criminal and civil cases that they “want their day in court” or that they’re ready to take their case to a jury–and most of the time it’s for good reason. Still, anyone involved in any kind of litigation should know what they’re signing up for, and Making a Murderer does us all the favor of giving one of the most extended, realistic portrayals of the process I’ve encountered.

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