Handling Sexual Harassment Allegations in the workplace, pt. 1

One of your employees walks into your office and complains of being sexually harassed by another of your employees, or worse- one of your customers. What do you as a small business owner do?

First things first.

Additionally, you do not under any circumstances want to retaliate against your employee for making the game. I don’t care if the claim is against your best sales person, a regular customer, or anyone else that you trust and value at your company.

What constitutes retaliation?

The Equal Employment Opportunity (EEO) laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEO rights is called “protected activity,” and it can take many forms. One of those forms is making a harassment claim, or as the law puts it- participating in a complaint.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s claiming harassment to:

  • reprimand the employee or give a performance evaluation that is lower than it should be;
  • transfer the employee to a less desirable position;
  • engage in verbal or physical abuse;
  • threaten to make, or make reports to authorities (such as reporting immigration status or contacting the police);
  • increase scrutiny;
  • spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
  • make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

Put simply, do not punish the employee in any way, shape, or form for coming forward- its their right.

Now, to investigate the claim

In almost all claims, you want to interview the victim making the claim. The interview should be conducted without bias, showing faith in the victims claim and courage in coming forward. You also want to protect the confidentiality of the victim to avoid any retaliation from their harasser if they are in a position of authority over the victim. You should listen intently to the victim, and show empathy throughout the entire claim reporting process.

We will have more on properly conducting sexual harassment investigations in a sequel to this post.



EEOC site

popdevteamHandling Sexual Harassment Allegations in the workplace, pt. 1
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Do your managers qualify for their exempt status?

Small business owners without any HR expertise and without seeking outside counsel tend to classify their employees on a whim, believing that granting someone “exempt” status will save the business on overtime expenses. Little thought is given to whether their “exempt” employees actually qualify for their exempt status. This is a problem that unfortunately, many of them don’t realize the severity of until there’s a claim of overtime that allows for them to learn about the qualifications for the exemption. By then, its usually too late and they are well on their way to losing a case.

Salary Test

Generally, an employee is paid on a salary basis if s/he has a “guaranteed minimum” amount of money s/he can count on receiving for any work week in which s/he performs “any” work. To qualify as exempt, employees must generally be paid a predetermined amount over $455 per week each pay period not-dependent on the quality or quantity of the work performed. Starting December 1st, 2016, the salary threshold of $455 a week will rise to $913 ($47,476 per year) making an additional 4.2 million workers eligible for overtime pay.

The Duties Tests

An employee who meets the salary level tests and also the salary basis tests is exempt only if s/he also performs exempt job duties.

There are three typical categories of exempt job duties, called “executive,” “professional,” and “administrative.”

Exempt executive job duties.

Job duties are exempt executive job duties if the employee

  1. regularly supervises two or more other employees, and also,
  2. has management as the primary duty of the position, and also,
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

“Mere supervision” is not sufficient. In addition, the supervisory employee must have “management” as the “primary duty” of the job.

Business owners should remember to look at the job duties of the position, not the job title of an employee to determine whether an exempt status applies. The Fair Labor Standards Act (FLSA) also provides certain exemptions for outside sales personnel, certain specialized computer personnel, certain highly compensated employees, certain retail sales employees, and employees covered by the Motor Carrier Act (MCA); Qualifying for these and documenting your rationale can get a little technical, and business owners should consult with an HR or Labor Attorney to ensure the exemption will hold up if ever challenged.

With the new salary threshold becoming effective in a few months, the time is perfect for employers to reevaluate their exempt/nonexempt classifications. If you are concerned that some of your exempt workers may be misclassified, the new regulations will give you another reason to revise their classification without necessarily creating liability for past wages.

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Uber will pay up to $100 million to settle labor suits

Uber has agreed to pay millions of dollars to settle two class-action lawsuits that would have defined the relationship between the company and its drivers.

Uber has survived a major threat to its business model, settling two legal suits brought by drivers who sought to be classified as employees instead of independent contractors.
The ride-hailing firm will pay up to $100 million to the 385,000 drivers, but their employment status will not change.

The class actions were brought in California and Massachusetts. Uber, which is valued at up to $70 billion, is on the hook for a $84 million initial payment, and another $16 million if it goes public.

Source: Uber will pay up to $100 million to settle labor suits

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Avoiding a Halloween Scare

It’s that time of the year again- Halloween, also known as “All Hallows’ Evening”. Many a CEO or business owner is tempted to let employees “dress up” for the day, humanize the workplace a little bit. Allow their teams to display some personality, and bring some pizazz to the office. Overall, this is not a bad time of the year to allow a little fun.

Don’t let the fun turn into a nightmare scenario for you. When adults come out and play, Halloween costumes can get overly sexy (I know, I know- you’ve never seen this happen), or mock racial, religious, or political beliefs that may offend another employee. Before you know it, you’re getting served with a workplace discrimination lawsuit. How can you avoid this spooky situation, and still allow for a little fun at the office?

As with most things Human Resources related, an ounce of prevention is worth a pound of cure. While you cannot completely eliminate the risk that an employee will get offended, you can certainly mitigate that risk by following a few easy steps.

First things first. If you’re going to allow for a little fun in the workplace this Halloween, communication with your Managers is key. Meet with your Management staff and Elviradiscuss the holiday, and how some in the workplace might find the holiday objectionable due to their religious beliefs. For this reason, Managers should communicate to their teams that it is perfectly okay NOT to participate in dressing up to work on that day, and if an employee requests to work from home and it won’t impact their work- this reasonable accommodation should be made. Any costume contests, office décor contests, parties, or activities related to the holiday should be communicated to staff as “voluntary” and no employee should be forced to partake.

Next, you should communicate that Halloween is not a day (or an excuse) to toss the company dress code out the window. While it is okay for them to dress up, it should be communicated to all staff that the main parts of your company’s dress code will still be enforced. You want to get the message across to your staff that costumes that may offend a colleague, or worse- a client, will not be tolerated. Period. If possible, give examples of costumes that comply with your dress code, and those that don’t. I suspect this being a Presidential election cycle and with the new Star Wars movie set to be released in December, you’re going to be seeing a lot of Donald Trump and Hans Solo costumes.

Lastly, I can guarantee you that even though you take the two necessary precautions above- someone will still end up coming to work in an inappropriate costume. Consider when communicating the Halloween holiday’s work rules for the day asking those employees who will be coming in costume to bring a change of clothing in the event their chosen attire is deemed inappropriate. Also inform them that not doing so may result in their being sent home for the day should their costume not meet the company’s communicated guidelines.

I know what you’re thinking, all this for a day of fun? Yes, and believe me- you’ll thank me if you still end of with the nightmarish scenario of having an employee file a claim.

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Is it Time for Employment Practices Liability Insurance (EPLI)?

The threat of being sued by an employee is an everyday reality for business owners, and small/mid-sized businesses are no exception. It only takes one event to turn a once happy employee into a disgruntled worker. Thinking you might be safe since you have a small, loyal staff? Think again. While your current staff may be happy and loyal, the threat of a lawsuit can come from past, present and even prospective employees.

ScalesThe idea that you could be sued by someone you’ve simply interviewed as a prospective employee may seem absurd, but employer liabilities begin before the employment relationship begins. Prospective employees can claim that you failed to hire them for an illegal reason such as their age or gender. Even though this claim may be hard to prove, it can still result in costly legal fees for your business.

Law suits from prospective employees are not extremely common, but law suits from current and former employees seem to be a mainstay in our current business climate. Employees who are terminated, passed over for promotion, or who feel harassed or slighted in some way may all take legal action.

One way to help mitigate the risks of an employee lawsuit is by purchasing Employment Practices Liability Insurance (EPLI). EPLI protects businesses against claims that the company is violating employee rights. While policies differ, EPLI in general will reimburse for court fees, judgment amounts and legal defense costs whether the company wins or loses. If you believe your current insurance already provides this coverage, be aware that many general liability policies exclude employee lawsuits and discrimination charges.

Every employer, regardless of size, can be the target of legal action. While cases against large, nationwide employers seem to be the only ones to make the headlines, insurance industry data suggests that mid-size business, those with at least 15 but no more than 250 employees, are sued frequently by current and past employees. These employees can often file a lawsuit without bearing any of the cost or risk involved.

According to the Conflict Solution Center, a nonprofit organization specializing in workplace mediation, the average cost to litigate an employment practices claim is $160,000. That doesn’t include settlement or judgment costs. When you start to think about the impact of those costs on your business, it makes sense to consider adding EPLI to your risk management strategy.

Speak to your insurance professional to see what your current coverage will cover and determine if EPLI is right for your business. Alternatively, give us a call at (305) 273-4066, and we would be more than happy to refer you to an insurance professional who will work with you to review your options for this type of coverage.

popdevteamIs it Time for Employment Practices Liability Insurance (EPLI)?
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