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.

Providing grief relief in age of mass shootings

October 04, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

Las Vegas City SunsetThe headlines rang out early Monday morning as many of us were preparing to leave home for work: DEADLIEST MASS SHOOTING IN US HISTORY. Coffee. IT WAS MADNESS. Toasted bagel. 50+ KILLED, MORE THAN 500 INJURED. Orange Juice. THERE WAS BLOOD EVERYWHERE.

Sunday night at the highlight concert of the Route 91 Harvest Festival, 64-year-old Steven Paddock smashed out two windows in his 32nd floor suite at the Mandalay Bay Hotel and Casino in Las Vegas and rained down terror on the 20,000+ unassuming concertgoers at the festival below. To date, the death toll has risen to 59, with more than 527 injured victims.

Due to the sheer number of those affected, we are all likely to know someone who was in attendance or affected by this tragedy in some way. As the nation mourns with the families of those who lost loved ones, employers are wondering what they can do to assist their employees in the healing process.

Support the grieving process
First, support the grieving process and acknowledge that everyone grieves differently. We live in an era of the 24/7 news cycle. Employees receive news over morning coffee, on the drive into work, and as they check their social media pages for the latest baby pictures. There is no escaping it—the news is everywhere. To that end, create safe spaces at work where employees can discuss their thoughts and feelings. Perhaps it is in the break room or around the water cooler or a dedicated room in the building for talking about tough issues. Wherever it is, embrace the fact that employees will want and need to discuss these issues with their colleagues.

Show you care
If your company lost an employee or had an employee injured in the attack, send a companywide e-mail expressing your condolences and offering your support. Connect with your employees in a positive way, and let them know you have staff, either HR personnel or grief counselors, on standby to assist them in sorting out their feelings.

Get to helping
While it is nearly impossible for everyone in your organization to get to Las Vegas to assist in the aftermath, create opportunities for employees to provide assistance to those affected. Whether it’s a company-sponsored blood drive, food drive, or writing notes of encouragement to first responders or victims, just get to helping.

Ramp up your EAP
If your organization has an employee assistance program (EAP), you’re already halfway there. Remind employees by e-mail that the program is available for their use, and be sure to include the website and telephone contact information. If your organization doesn’t have a standardized EAP, consider implementing one. These programs provide great benefits to employees seeking not only grief counseling but also debt-relief counseling, money management, and lifestyle and fitness management services.

Work on leniency
It’s likely that for the first several days after a national tragedy, employees will be less productive at work. Prepare for this and expect a lag as employees come to terms with what happened.

The most important thing to remember is that the workplace often serves as an extension of an employee’s identity, as it’s at work where some of our closest personal relationships and social interactions are born. Just as employees would grieve and reconcile tragedy in the comfort of their homes, they are likely to bring those issues to work with them. Be cognizant and open to these feelings, and aim to support your team as they wrestle their way back to normal.

What’s your salary? Apparently none of my business

September 25, 2017 - by: David Kim 0 COMMENTS
David Kim

We all know that movie stars make a ton of money. I mean, a ton of moneyUnequalPay. How much? Well, last month Forbes published its list of the world’s highest paid actresses and actors for the previous year so you can see for yourself. There are certainly some surprises on the list.

No offense, but how is Adam Sandler the fourth highest paid actor at $50.5 million the past year? Admittedly, he had a murderer’s row in the 90’s that included such classics as Happy Gilmore, Billy Madison, and The Wedding Singer, but that was decades ago, and let’s just say my taste in movies when I was in high school and college was a bit more immature. “Chlorophyll? More like Bore-o-phyll! Right?”

What’s not so surprising about the list is the continued disparity between men and women, even when it comes to the upper echelon of actors and actresses. For example, Mark Wahlberg was the highest paid actor last year at approximately $68 million, which was more than 2 ½ times the amount of the highest paid actress, Emma Stone at $26 million. In fact, Emma Stone would have landed all the way at number 15 in the list of top paid male actors. In total, the top 10 actors banked a cumulative $488.5 million, while the top 10 actresses were paid $172.5 million, or almost three times less.

Now no one is saying that these particular actresses are destitute. After all, we are talking about millions of dollars. And a whole essay could be written about the many factors that contribute to this pay disparity, including the unconscious bias that exists regarding female driven movies that I wrote about in my Wonder Women post a while back. But, the reality is that numbers are numbers, and these numbers evidence that there continues to exist a wide gender pay gap in Hollywood.

In fact, as most know, studies show that this gender pay disparity exists when it comes to employment generally, not just in Hollywood. Employment laws, such as the Equal Pay Act and other state laws, have attempted to curb this disparity through legislation. However, an even newer wave of laws has been passed, or proposed, to even further address what are deemed to be historic impediments to gender equity.

Specifically, Delaware, Oregon, Massachusetts, San Francisco and New York City have all passed laws, which will become effective on varying dates within the next year, that would prohibit employers from asking applicants to disclose their past salary history, and other related restrictions. Numerous other states and jurisdictions, including but not limited to Illinois, California, New York, New Jersey, Pennsylvania and a whole host of others, have proposed similar bills.

Proponents of these laws argue that barring employers from asking about salary history is important to closing the gender wage pay gap, as it would preclude the perpetuation of previous salary discrimination that exists. Of course, as with any new law, there are those who challenge the wisdom and legality of such laws.

For example, Philadelphia had passed a law prohibiting the inquiry of an applicant’s wage history, but that law’s effective date has been stayed pending judicial challenge. Specifically, the Philadelphia Chamber of Commerce, along with specific employers, have filed a suit in the Eastern District of Pennsylvania alleging that the law violates the First Amendment, Due Process, and other claims. In addition, they argue that employers are harmed by this law as it would hamper their ability to recruit and hire top talent, particularly in the case of high-level executives and employees who must be lured away from their current employer.

It will be interesting to see what the Eastern District of Pennsylvania ultimately rules with respect to this challenge, as it could foreshadow other challenges in other jurisdictions. However, until a determination is made, the reality is that these prohibitions are a growing trend, as evidenced by the number of states that have proposed bills in the pipeline, in addition to those jurisdictions that have already passed such laws.

Therefore, employers must be aware of these potential restrictions. If or when applicable, depending on one’s jurisdiction, employers will have to train their employees on the proper scope of questioning during the interview process, and potentially revise any applications or related documents that may delve into this prohibited territory. In addition, employers will have to evaluate and come up with creative, yet consistent methods, to ascertain the appropriate salary for a position or what salary to offer to a candidate without the benefit of the applicant’s prior wage history for comparison or negotiation purposes.

Whether these new salary inquiry prohibitions actually assist in lessening the gender pay gap obviously remains to be seen. In the short term, it will certainly provide a burden on employers who are used to recruiting and interviewing candidates a certain way. Personally, I blame Adam Sandler for all of this. He made $50.5 million in the past year. $50.5 million? And he deserves this investment despite being paid $20 million alone in 2015 for the flop Pixels. Pixels? No wonder people think men are overpaid.

Magnum, SMH

September 20, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Who could possibly sully the sainted memory of Thomas Magnum, fictional private investigator and iconic 1980s bon vivant? All 45 of these guys, apparentlyMan partying

Here’s a quick hit in case you don’t want to follow the link: Bachelor partygoers decided they would take in a baseball game in Detroit between the Tigers and the Chicago White Sox. All 45 partiers (if only I were so well-liked) dressed as television’s best-known Detroit Tigers fan, Magnum, P.I. The fellows must have left their Higginses behind because they weren’t on their best behavior (hijinks during a bachelor partyperish the thought!). Eventually, the Tigers brass kicked all 45 Tom Selleck doppelgängers from Comerica Park.

Their sins? One of them was smoking and others were catcalling women in the crowd (no mention whether all those red Hawaiian shirts also crossed a line). One member of the party despaired that the Tigers ruined everyone’s fun because of a few bad pineapples, but, honestly, who could possibly separate one naughty Magnum from the other 44 angels?

You may be asking, “Matt, this is amusing and all, but what does this possibly have to do with HR?” That’s a fair question. The HR intersection is that employers need to be watching their patrons’ behaviornot just their employees’to avoid a hostile work environment. Employers can be liable for the harassing conduct of visitors, vendors, and customers just as they can be liable for the actions of supervisors and co-workers. If you are aware that a third partyor third parties, like four dozen Thomas Magnum lookalikesmay be harassing your employees or causing a hostile environment, you have a duty to take prompt remedial action to correct the problem.

So bravo to the Tigers. We don’t know whether the revelry was directed at any team employees, but the team had a problem on its hands and immediately corrected it. Sure, it probably cost them some concession revenueafter all, 45 guys could drink a lot of Old Dusseldorf. Still, you should heed the team’s example and be vigilant of your patrons’ behavior for the benefit of your employees.

In fact, you’ll probably have to be more vigilant. Potential harassers are rarely this loud and in-your-face, and they almost never wear identical, splashy tropical shirts.

 

Train ‘em up

September 12, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

If you’re a poor soul who’s followed enough of my posts to spot patterns, you’ll spot one here. Maybe I’m a broken record, maybe I’m simple-minded, or maybe I really like baseball.  Personal development career

Baseball speaks to me. The U.S. is still a blip in the long course of human history. We cobbled together our identity from bits of preceding cultures, but baseball is one thing we claim as uniquely ours. Annie Savoy, Susan Sarandon’s character in Bull Durham, put it well:

“Walt Whitman once said, ‘I see great things in baseball. It’s our game, the American game. It will repair our losses and be a blessing to us.’ You can look it up.”

I never go very long without giving Bull Durham another look and, with the Majors moving into the stretch run, it’s been on my brain. Bull Durham serves you a tale of life at baseball’s lower rungs; the spring, summer, and fall rhythms of my adopted Carolinas; and the humor of dime-store philosophy. It’s also irreverent and bawdy, which naturally holds my attention. (I still laugh at the Little League coaches back in the day who took their teams to see the movie without doing their due diligence; those kids got an eyeful and an earful.)

Bull Durham is also a story of molding talent and potential into professional success, which is an angle I suspect interests our readers. The movie’s wise sage, Crash Davis (Kevin Costner), is a veteran minor league catcher with not-quite-enough talent but a Hall of Fame professional bearing. His apprentice, Ebby Calvin “Nuke” LaLoosh (Tim Robbins), is a flamethrowing trainwreck of a young pitcher who’s as outlandish as his name. The big league club dispatched Crash to school Nuke in the ways of elite baseball and basic adulthood, and the two soon threw off a bit of a Yoda/Luke vibe (if Yoda were a switch-hitting whiskey aficionado and Luke had the maturity of a drunk baby).

Even still, it worked. Nuke caught on, learned to harness his wild pitches, and the big club pulled him out of the bus leagues up to the majors. Why? I think we have to credit Crash’s unconventional, wild, and uncompromising approach, which mixed odd philosophy with practical advice and forced Nuke to fail (and thus learn).

Consider the following examples that we can all adapt from time to time:

  • During a conference on the mound, Crash ordered Nuke, “Relax, all right? Don’t try to strike everybody out. Strikeouts are boring! Besides that, they’re fascist. Throw some ground ballsit’s more democratic.” Very good advice. We all have other people around us to carry the load. If Nuke didn’t slow down, he may have killed his arm and spent the next three decades selling encyclopedias.
  • By that point in their lives, Crash had forgotten more baseball than Nuke might ever learn; still, he waived off Crash’s pitchesa huge no-no for just about any pitcher.  Sure enough, the next batter blasted a home run. Again on the mound, Nuke wondered, “God, that sucker teed off on that like he knew I was going to throw a fastball!” Crash turned and said, “He did know … I told him.” Lesson given, lesson learned. Nuke dutifully threw the pitches Crash called from then on. Recognize that advice is meant to channel your potential, not to hold back your supposed natural brilliance.
  • Crash didn’t limit Nuke’s lessons to baseball. There were tips on handling the sports media. There were tips about life in the majors. And there’s this gem, which isn’t all that meaningful but is too good to leave out: “When you get in a fight with a drunk you don’t hit him with your pitching hand.”  Hey, you never know what advice is going to come in handy when.

So, dear readers, which one are you? If you are Crash, are you willing to take some time and give someone the chance to fail, all in the service of making them a better person on the other end? If you are Nuke, are you willing to recognize experience and wisdom, take your lumps, and emerge better for it? I’m willing to bet that the most successful mentoring, managing, and training occurs when one is Crash, the other is Nuke, and both are crazy enough to make it work.

I just don’t think I can look that up.

In honor of Labor Day, some time sheet tips to beat FLSA off-the-clock claims

September 05, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Ah, Labor Day. Family barbecues, a trip to the beach, your last chance to wear white, time spent napping and binging on Netflix, or just a simple day of relaxation. However you spent the long weekend, I hope you enjoyed some rest from your labors. As an employment lawyer and a mother, the word “labor” has two rather negative connotations for meas in “labor pains” and, even worse, the “Fair Labor Standards Act.” I will spare you the details of the former and focus instead on the latter in today’s post.  Overtime (2) read more…

HR issues that arise when natural disasters hit

August 29, 2017 - by: Robin Kallor 2 COMMENTS
Robin Kallor

Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events. Some of the more commonly asked questions are addressed below. Notepad with disaster plan on a wooden table.

1. If there is a forced closure of the workplace, must an employer pay its employees their wages during this shutdown period?

Under the Fair Labor Standards Act and applicable state laws, non-exempt employees must be paid for all hours worked. In the event non-exempt employees are not working during this shutdown period, they are not entitled to be paid wages for this period when they perform no work.  There are exceptions to this–for example, if the employer compensates employees under the fluctuating workweek model or if union contracts provide otherwise in unionized workforces. Additionally, some states have “reporting pay” minimums in the event the shutdown occurs after the employees report to work.

On the other hand, exempt employees must be paid their weekly salary for any week in which they perform some work for the employer. Therefore, for shutdown periods spanning less than one week, they must be paid their regular weekly salary for this week even though they were not working during a partial week in which the employer was shut down.

2. May an employer permit employees to work remotely?

Employees may be permitted to work from a remote location; however, employees must ensure that non-exempt employees are paid for all hours worked. Therefore, non-exempt employees must still clock in or provide some form of accounting of the hours that they worked, and the employer’s ability to monitor these work hours is limited.

As to exempt employees, if the shutdown period is a full week, exempt employees would not be entitled to their weekly salary for that full week. If the exempt employee works remotely, that remote work will constitute work performed in that week, thereby entitling the exempt employee for their full weekly salary for that period of time.

3. What happens if the employer’s business is open, but the employees are not able to travel?

Again, under the FLSA, non-exempt employees are entitled to be paid for only the time that they work, regardless of whether the employee do not work because the employer shuts down or the employee cannot travel to work.

Exempt employees are not entitled to be paid for full days in which they perform no work under these circumstances. Therefore, if they come to work late, they cannot be deducted a partial day’s absence; however, if they are absent for a full day, this time constitutes personal time and they are not entitled to their salary for these full days.

4. Can an employer permit an employee to use accrued but unused vacation for this period of shut down if they would not otherwise be entitled to their wages?

Yes. An employer may permit an employee to use their accrued but unused vacation time if they are not able to travel to a workplace which is open or unable to work due to a shutdown.

5. If an employer does pay an employee for the shutdown period, is that time counted toward the 40 hours for overtime purposes?

No. If an employer chooses to pay non-exempt employees for time that they do not work due to a shutdown, that time does not constitute “working time” and thus isn’t counted toward the 40 hours for overtime purposes.

6. What are the protections for employees who need to take time off during this time?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. For example, if an employee is suffering from anxiety due to the hurricane that is corroborated by a medical certification and the employee is eligible for FMLA leave, then the employee is entitled to up to 12 weeks of leave under the FMLA leave.

Additionally, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to activate duty, in support of a contingency operation. Also, the FMLA allows eligible employees to take up to 26 weeks of job-protected leave in a 12-month period to care for a covered servicemember with a serious injury or illness.

In addition to the FMLA, the Americans With Disabilities Act (ADA) and applicable state law mandates that employers provide reasonable accommodation to otherwise qualified individuals with disabilities. An extended leave of absence can constitute a reasonable accommodation. In the event an employee is suffering from some form of disability due to the hurricane (e.g., depression, anxiety, or PTSD) and requests a leave of absence, that must be considered even if the employee is not eligible for FMLA leave or requests a leave beyond the 12-week FMLA leave entitlement.

Moreover, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are part of an emergency services organization (such as the National Guard or a Reserve unit). USERRA prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service.

Finally, when an illness or injury results from the hurricane, applicable state law may mandate paid sick leave.

7.  How can we show concern?

Employers should engage in regular communication with employees where possible so that they are aware of the employer’s expectations. Moreover, safety concerns are paramount to all others. Finally, employees having difficulties coping with the aftermath should be encouraged to use the employer’s Employee Assistance Program (if one is offered) or take advantage of similar alternative services that may be covered under the company’s medical plan.

Solar eclipse guide for employers

August 21, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Today’s solar eclipse is expected to be an exciting, once-in-a-lifetime opportunity with people from all over flocking to the path of totality.  While this will likely mean considerable economic benefits from tourism, it is also expected to be quite costly for employers.  According to an estimate by outplacement company Challenger, Gray & Christmas, this afternoon’s celestial show will cost employers a staggering $694 million due to reduced productivity.  Employers in the path of totality are expected to be hit especially hard.

With the eclipse happening on a regular work day and with schools closing in anticipation of the event, employers can expect an unusually high number of employee absences today.  For those employees showing up as scheduled, Solar eclipseemployers can still expect a dip in productivity while the eclipse is happening.  There is a silver lining, as the eclipse gives employers the opportunity for team-building and morale boosting events in celebration.  Here are a few employers tips for today’s eclipse:

1.  Consider embracing today’s event and having a voluntary eclipse viewing party for employees.

2.  Remind employees to use proper safety eyewear for viewing the eclipse at any employer function.

3.  Remind employees to be cautious about any viewing glasses they purchased on their own, given the number of scams reported.  If the glasses are employer-provided, ensure they are properly certified.

4.  For those employers with employees outdoors for work or work-sponsored events, consider any necessary safety precautions to prevent accidents caused by the reduction in light during totality, distraction, etc.

5.  Consult your legal counsel and insurance providers about on any potential liability for injuries during employer-sponsored eclipse activities.

In a few short hours, we can expect the skies to darken, the stars to twinkle, the animals to go into their nighttime routines, and a record number of camera snaps.  Whatever your plans today, we wish you a safe and happy solar eclipse experience.

If you can’t stand the heat, get out of the kitchen—best practices from Top Chef

August 14, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

“If you can’t stand the heat, get out of the kitchen!” That’s essentially what a group of Teamsters told Top Chef host personality Padma Lakshmi back in June 2014 outside of Steel & Rye restaurant in Milton, Massachusetts. This “episode” is now at the center of a lawsuit brought by the federal government against four Boston-area Teamsters accused of threatening Top Chef production into providing them with positions already held by nonunion employees.  On Strike Sign

The incident occurred in June 2014, when Lakshmi arrived at the restaurant for the filming of a Top Chef episode. Her van was met with a group of Teamsters, one of whom allegedly approached Lakshmi’s vehicle, reached in the passenger side window where she was sitting, and said, “Lookee here, what a pretty face.” Naturally, Lakshmi understood this to be a threat—or at least this is the theory of the attorneys prosecuting the case.

The Teamsters on the other hand contend that the incident outside of the restaurant was for the purpose of a legitimate union objective, i.e., picketing to obtain jobs driving Top Chef’s trucks for their fellow out-of-work Teamsters. Prosecutors argue that the Teamsters were attempting to strong-arm the Bravo show’s crew into paying them for unneeded work, for which there is no legal protection. See United States v. Enmons, 410 U.S. 396 (1973), (Holding that federal law does not protect union violence in furtherance of the union’s objectives).

So, what are some best practices for employers facing a labor picket?

1) First, an employer needs to know that strikes and picketing are protected conduct under the National Labor Relations Act, under certain circumstances. A union, however cannot strike or picket an employer to force it to stop doing business with another employer that is the primary target of a labor dispute. At work sites with more than one employer, such as a construction site, picketing is permitted only if the protest is clearly directed exclusively at the primary employer.

2) Picketing should be confined to public places surrounding the employer’s premises. As a general rule, there should be no picketing in private places or on the street.

3) While picketers can be enthusiastic in support of their picket, the chants should not include threats, slurs, or other forms of harassment based on race, nationality, or gender/sexual orientation.

4) Picketers should avoid confrontation and not make physical contact with anyone under any circumstances. This includes throwing items, brandishing weapons, following individuals to and from the picket site, and making threats.

5) Generally, employers subject to a picket cannot obtain a legal injunction to prohibit or stop a picket. Both state and federal law prohibit a court from intervening by issuing an injunction to prohibit a peaceful picketing protest. But employers should be mindful, as pickets are not without some constraint. In the event a picket results in the blockade of entrances, violence, and/or the destruction of property, courts may issue an injunction.

6) Protesters can picket only employers that are subject to the actual labor dispute. Therefore, it’s vitally important for employers to know whether they are considered the actual employer. For instance, contractors that subcontract the work are not considered employers of the trade being picketed by the union. As an example, if the project has a two-gate system and the carpentry union is picketing a particular project, the union may picket only at or near the gate that the carpentry subcontractor uses, i.e., the picketers cannot picket at the electricians’ gate. If a union fails to honor this two-gate system, the employer can raise the issue before the National Labor Relations Board.

7) Finally, employers cannot terminate employees for participating in a strike or picket, or their feet will be held to the fire!

Leaks and whistleblowers and liability, oh my!

August 07, 2017 - by: David Kim 0 COMMENTS
David Kim

Leaks are everywhere. They happen in politics, in sports, in the entertainment industry, in people’s everyday lives, and (unfortunately for many of us, myself included) in the roofs and pipes in our homes.

  • How do we know that Kyrie Irving wants a trade from the Cleveland Cavaliers? Someone leaked it to a reporter.
  • We know the official reason the new Han Solo Star Wars movie changed directors after months of shooting was because of “creative differences.” But how do we know what those specific differences were and how much animosity actually existed between the producers and the now-dispatched directors? Because someone leaked the e-mail exchanges.
  • Did you know that the most recent Game of Thrones was available for viewing before this past Sunday’s official airing? Heard someone leaked it online.
  • Did you hear that Bob really likes Kate, that their first date is next week and Bob is taking Kate to the place that Kate told Betty (who told Bob) she always wanted to try? John (who works with Bob, but also has mutual friends with Betty) leaked it to me.Trading secrets

It’s no different with politics, where leaks have always been a part of the culture. Except that they are often more newsworthy to the general public and provide a source of debate for the political pundits in the news media. I think it can be objectively said, however, that the existence of “leaks” in politics has taken on an increasingly more pronounced role in the past year. Everywhere you turn, someone is talking about leaks, whether it’s the necessity to stop leaks, how leaks harm our institution, whether we wouldn’t know the actual truth without the leaks, and so on. Everyone’s got an opinion.

Leakers vs. whistleblowers

What’s also interesting is how some political commentators conflate the term “leak” with “whistleblower” or use them as if they are synonymous. Clearly, not every leak of information, documents, or conversations constitutes actual whistleblowing activity. Sometimes the leak is done simply for political gain (to both create a favorable or unfavorable view of the institution or person who is the subject of the information) or to get allegedly newsworthy information (i.e., neither classified nor related to illegal actions) into the public realm.

When it comes to actual whistleblowers, we often think of the brave souls who shed light on invidious and illegal practices by political operatives or money-grubbing corporate executives and corporations that harm individuals or the public good. While this is certainly the more prevalent and traditional view of whistleblowing activity, it isn’t the only one.

In the employment context, there are a variety of laws that protect employees who engage in whistleblowing “activity.” In particular, many states have enacted whistleblower protection laws, which in application can be very broad. New Jersey’s Conscientious Employee Protection Act prohibits an employer from retaliating against an employee who complains about a practice he or she “reasonably believes” is a violation of a law, rule or regulation. This means the employer doesn’t even have to engage in conduct that is violative of any law, rule or regulation, only that an employee complained about something that he or she “reasonably believed” was a violation and that an adverse action occurred as a result of this complaint. That standards sets a very low bar for filing a lawsuit and surviving the pleadings phase, thus requiring employers to expend significant sums in defense costs, even if they do ultimately prevail. A number of other states have similar laws, each with varying levels of breadth and scope.

Bottom line for employers

Just because not every leak constitutes whistleblowing activity, that doesn’t mean that workplace complaints also don’t automatically constitute protected whistleblowing activity. While the complaint may not rise to what you would typically consider to be “blowing the whistle” on the company, be aware that broad state whistleblowing laws could in fact protect the complaining employee from adverse action. While you mull that over, please excuse me. I have to go find someone to fix my roof leak.

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