In helping employers with their written employment policies, we are often asked whether it is necessary to have a policy regarding employees’ use of cell phones for work purposes while driving.  The answer, as is often the case, is “it depends.”  If your employees drive as part of their job or commonly use their cell phones for work purposes while driving, then your company should address cell phone use while driving in a written policy.  A well-written policy can not only reduce the likelihood of accidents caused or contributed to by distracted driving, it can also help reduce your company’s liability in the event of an accident caused or contributed by your company’s employee. Continue Reading Put the phone down!

About a year ago, 10 days after the Harvey Weinstein sexual harassment story broke, Alyssa Milano tweeted “– if this has happened to you tweet #MeToo.” In the first 24 hours after that tweet rocked the nation, Facebook had 12 million Facebook posts and a movement was born. The movement is creating new landscapes for employers as their obligations are shifting and cultural expectations are continuing to morph. New laws have been enacted or are under consideration. In the past year Delaware, California, and New York have enacted laws making harassment training mandatory for employers to provide for their employees. Here in Minnesota state lawmakers came very close to passing a bill that would have significantly altered the standard courts and agencies use to evaluate sexual harassment claims under the state human rights law by essentially eliminating the standard altogether. This would have made it much easier for employees to successfully assert sexual harassment claims and bring them to trial. Organized action by the business community raised concerns about the potential impact of the bill and stalled it on its way to passage in the last legislative session.

In addition to changes in states’ laws, increased scrutiny and attention is being paid to company history. Harassment claims or other misconduct, particularly involving management and officers, can impact the sale or purchase of a business. Potential buyers are performing increased due diligence regarding companies’ sexual harassment policies, training, complaints, processes for investigation and resolution of complaints. Potential buyers of businesses are including representations and warranties in their agreements to buy. Sellers are increasingly considering representation and warranty insurance policies.

So what are the best, most effective things that businesses can do in this climate and sea change?  Answer – TRAIN and INVESTIGATE.

TRAINING

First, if you haven’t trained your employees, including all managers, supervisory personnel and leadership, or if you have not done so in the past few years, consider doing so now. Conduct in-person, interactive, participatory training, not videos or webinars. Consider using qualified outside personnel.  Include and focus on promoting a respectful and safe workplace, not just avoiding liability. No amount of training will overcome a business environment that allows disrespectful and unprofessional conduct or ignores bad acts or complaints if it involves the good ole’ boys or rainmakers or top management. Beware of and be careful of the “power factor” where rank, reputation, revenue generation or long service, provide insulation or immunity from bad acts. Make the training mandatory and follow up, follow through and follow your own procedures. Get buy-in and demonstrate commitment from the top down.

Follow through to prevent retaliation which can take many forms, even being left out of internal opportunities or being ostracized which show others what can happen to them if they complain.

Incorporate training on bystander intervention techniques to give employees the tools to communicate with neutral responses when sensing other employees’ discomfort with a situation.

Make and keep detailed records of your training to show what resources have been directed to training on sexual harassment issues and show the quality and experience of those who do the training. Do compliance training regularly. Include in the training a focus on workplace civility. Review and communicate policies and protocols for reporting harassment.

INVESTIGATION

When it comes to investigations train your HR staff to competently and quickly respond to claims.  Investigate seriously, promptly, thoroughly, quickly and record and communicate the results appropriately. Consider when to bring in outsiders to investigate which may help with confidentiality, competence, and impartiality. Be consistent in how claims are investigated and do not show favoritism or ignore complaints when made about leaders, business generators, long-term or higher ranking employees, or the good ole’ boys.

The post-Weinstein era created a flood of high profile accusations of gender bias and sexual harassment in industry, media, government, and throughout the private sector causing a dramatic increase in claims, lawsuits, and money paid out. The #MeToo movement continues to dominate the media and garner attention. The simple tips in this blog will go a long way toward reducing or eliminating the chance that you and your business will end up a #MeToo statistic.

Don’t assume that men can’t sexually harass other men (or women can’t harass other women), or otherwise discriminate against them in violation of the civil rights laws. In August of this year, the Seventh Circuit Court of Appeals issued a decision involving allegations of sexual harassment by a male employee against his male coworkers and supervisors in a small grocery store. Smith v. Rosebud Farm (7th Cir, 8/2/2018). Smith, a butcher, asserted that soon after he became employed, male coworkers behind the meat counter were grabbing his genitals and buttocks, and repeatedly mimed oral and anal sex. Smith’s supervisor was found to not only have been aware of the harassment, but also to have been a participant upon occasion. Smith eventually filed charges with the EEOC alleging sexual harassment and race discrimination. Although the supervisor told the coworkers to stop “goofing off” they began banging their meat cleavers and carrying large knives by Smith while pointing at the meat trays they carried.

The appellate court upheld the jury verdict, finding that the behavior showed Smith was being mistreated on the basis of his sex — male. Smith had offered evidence that only men, and not women working in the grocery store, experienced the same kind of treatment that he suffered. As a result, the jury was allowed to conclude that the discrimination was based upon sex. The appellate court also held that if this had been an all-male environment, with no females to whom Smith could compare himself for evidentiary purposes, there would be no inference of sex discrimination as was allowed by the court here.

What should you take away from this decision? Any time the reason for someone’s treatment at work can be said to have been based on or because of that person’s gender, there is a potential risk for sexual harassment or other forms of sex discrimination. Keep in mind, sexual harassment is just one form of sex discrimination. So, if harassment is based on a person’s gender, such as reflected in the Smith case with regard to physical actions directed at his genitalia, there is the potential for sexual harassment liability regardless of the gender of the perpetrator(s). Be wary of assuming that just because only men or only women are involved in workplace misconduct, or just because no one is asking for sex, that discrimination liability is precluded. The span of sex discrimination and sexual harassment goes far beyond those traditional paradigms.

The MeToo movement has highlighted the reality that people who work closely together can develop romantic feelings about a co-worker. In many cases, these feelings are not reciprocated, and how the party who desires a sexual or romantic relationship deal with that can create problems.

Surveys have estimated that 20 percent of married partners met each other in the workplace. My youngest son met his girlfriend while they worked for the same employer. Work is a common place for people to get to know each other. But when a supervisor wants a relationship with a subordinate, things can get very messy.

How can the supervisor be certain the relationship is consensual? When the supervisor has authority over the other employee’s assignments, compensation, promotions and conditions of work, is the subordinate really consenting to the relationship? And what happens when the relationship ends? Can the supervisor objectively manage a former lover or romantic partner, without the subordinate’s perception that the supervisor is retaliating?

We have learned that Garrison Keillor, once a respected and beloved Minnesota figure, was engaged in some kind of romantic relationship with an employee who wrote for his radio show, Prairie Home Companion. In a Pioneer Press article he is quoted as saying, “No button was unbuttoned and no zipper was unzipped. I never kissed her … This was a flirtation between two writers that took place in writing.” Nonetheless, Mr. Keillor and this employee engaged in sexual banter and wrote extremely intimate notes to each other as they exchanged copy for the radio show. Mr. Keillor assumed she enjoyed and consented to these interchanges, while apparently she felt she had to participate to remain in his favor.

Because consent is so difficult to prove, we recommend that employers consider developing policies that address how romantic relationships will be handled. Although it seems easiest to simply prohibit employees from dating each other, it is not advisable to do so. It is a policy which will be impossible to enforce.

Instead, an employer should consider a policy which is realistic. Suggested elements of a consensual romantic relationship policy could include:

  • A requirement that the employees inform the employer that they are having a relationship
  • A requirement that the employees enter into an agreement which specifies that the relationship is entirely consensual, and they will inform the employer if the relationship ends
  • Provide for including the policy in sexual harassment training so that employees are aware of the policy and whom they should inform if a romantic relationship develops
  • A prohibition of a supervisor engaging in a romantic relationship with an employee who directly reports to the supervisor

In the current legal environment it is extremely difficult to prove that a relationship was consensual when there is a power imbalance between the two employees and one employee has authority over the other employee.