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.

White House gone wild!

June 07, 2017 - by: Matt Gilley 1 COMMENTS
Matt Gilley

These days, just about anyone with an Internet connection and some time on their hands enjoys a wonder of the modern age: binge-watching. One of the first, and still one of my favorites, is Netflix’s House of Cards. No matter how over-the-top the plot twists become, no matter how difficult it is to follow the multilayered schemes and shifting alliances, I can’t quit the drama surrounding the Underwoods and their White House. (It also helps that I get an added bonus of local color, since Frank Underwood hails from Gaffney, South Carolina, next door to where I sit in Spartanburg. One early episode even featured the Gaffney Peachoid – look it up.) businessman and house of cards cartoon

Frank Underwood’s approach to personnel is … well, unsentimental and often brutal. We all know the rule of at-will employment: Both the employee and the employer may end their relationship at any time, with or without notice or reason. Congressman, Vice President, President, and [spoiler alert!] now Mr. Underwood seems bent on adding a little twist to the familiar rule: An employer may terminate an employee’s employment at any time by killing said employee, without notice and often without much reason. The recently released season five is no exception.

Needless to say, Underwood is a man who holds little regard for the retaliation and whistleblower protections afforded to those who serve at his pleasure.

I’m a lawyer, and a hammer considers everything it sees to be a nail, so I often wonder what it would be like to defend the deposition of a fictional character or sit at a trial while that character testifies. Frank Underwood, if he were as candid under oath as he is with the camera, would probably have me reaching for his checkbook in an instant (check that–he would have me reaching for the Fifth Amendment in an instant). Take, for instance, these quotes:

  • Right off the jump in the show’s first episode, Frank’s neighbors’ dog was struck by a car. He stood over the dog, looked into the camera, and said, “There are two kinds of pain. The sort of pain that makes you strong, or useless pain. The sort of pain that’s only suffering. I have no patience for useless things.” Then he strangled the last bits of life out of the pooch while no one was looking. His testimony is not off to a great start.  I also wish he hadn’t worn his favorite “F” and “U” cufflinks.
  • Of all the things I hold in high regard, rules are not one of them.” Oookay. Maybe we can recover from this one … maybe I can cast him as ambitious, results-oriented, and a real go-getter. Folks like a take-charge guy, don’t they?
  • For those of us climbing to the top of the food chain, there can be no mercy. There is but one rule: Hunt or be hunted.” Oh, man. C’mon, Frank! Throw me a bone here! I realize you’re competitive, but a lot of your people are no more, and those folks over in the jury box are getting nervous and scoping out the exits.
  • I have zero tolerance for betrayal, which they will soon indelibly learn.” Lovely, Frank. I’ve stopped taking notes, and I’ve joined the jury in scoping out the exits.
  • When you’re fresh meat, kill and throw them something fresher.” And with that, I will take my leave.

Any other House of Cards gems that you like? Feel free to include them in the comments.

Peter Dinklage takes on Elf

December 05, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

It’s December, which means that those of us holiday fanatics can decorate and watch Christmas movies to our hearts’ content without shame.  Of course, I won’t tell anyone if you already had your tree up in November (like me) or if you never took it down from last year.  One of my favorite Christmas movies is Elf, starring Will Ferrell.  It is surprisingly packed with various employment law issues, such as employee substance abuse at work, sexual harassment, and workplace violence.  In one of the more memorable scenes, Peter Dinklage’s character, Miles Finch, demonstrates how good intentions can still lead to a harassment complaint.  Facepalm, retro disappointed man slapping forehead, d'oh!

As background, Will Ferrell’s character, Buddy, has been raised as one of Santa’s elves and only recently learned that he is actually human. He has tracked down his biological father, who works for a children’s book publisher in New York City. Unaccustomed to the human world and innocent to its realities, Buddy has difficulty adjusting to life in the Big Apple and working in his father’s office.

Cue Peter Dinklage, who steals the scene wherever he goes.  His character, Finch, is a best-selling children’s author ready get down to the business of pitching his latest book ideas. Finch, like Dinklage, is a busy, high-powered professional who also happens to have a form dwarfism. Tensions flare when Buddy barges into the room and innocently mistakes Finch for one of Santa’s elves. Unaware that Buddy was actually adopted and raised by Santa’s elves, Finch is understandably insulted and upset by Buddy’s elf comments. Finch tries to remain professional but quickly reaches his breaking point when Buddy calls him an “angry elf.” Finch then initiates his own trial by combat and attacks Buddy before storming out.

This is a great example of how even the most well-meaning employee can unknowingly engage in conduct giving rise to a harassment complaint. As the Equal Employment Opportunity Commission (EEOC) has explained, harassment is unwelcome conduct that is based on a protected status such as disability, race, color, religion, sex (including pregnancy), etc. It becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Had an employee complained about conduct like Buddy’s, the employer’s best practice would be to investigate immediately,  interview potential witnesses, provide the accused employee with an opportunity to tell his/her side of the story, and take prompt remedial action reasonably designed to end any harassment. Other best practices include regular employee and supervisor training as well as having a strong harassment policy clearly stating that harassment will not be tolerated, the various avenues for reporting such issues, and that retaliation will not be tolerated. I’ll leave the workplace violence issue for another post.

Thankfully for Buddy, his tale ends on a cheerful note and teaches us that the best way to spread Christmas cheer is singing loud for all to hear. In the meantime, what’s your favorite color?

 

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.

 

 

Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Martin had reportedly been the target of Incognito’s hazing for some time. It’s unclear whether the Dolphins knew about the conduct all along or first learned of it after Martin stormed out of the team facility last week. From the HR/employment law perspective, it doesn’t really matter. At this point, if you’re the Dolphins, you’re trying to limit your liability.

Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment on the basis of an employee’s gender, race, religion, or other protected classification. The test for a hostile environment is whether the complained-of conduct is severe and pervasive enough that it effectively alters the employee’s working conditions. Take another look at that voice mail and read the articles about the conduct Martin reportedly endured at the hands of Incognito and possibly others leading to his decision to walk out on his team.

With Incognito calling Martin a “half n—– piece of s—,”  the reports of systematic harassment, and Martin’s absence from the team, the Dolphins ran out of options with Incognito. An employer’s defense to coworker-on-coworker harassment is that upon learning of the conduct, it promptly investigated and took appropriate remedial measures. Whether or not the Dolphins knew about the Incognito-Martin dynamic earlier than last week, they knew all they needed to when they heard that voice mail.

There are other interesting legal and HR aspects to this story: bullying on the job and workplace violence; Martin’s potential causes of action against Incognito, the Dolphins, or the NFL;  jock culture. This blog may address those in future posts as the saga of Martin and Incognito unfolds.

The narrative of the pro football season has shifted. Roger Goodell was just getting his arms around head injuries. Now, he has to deal with hurt feelings. Welcome to the NFL!