On Wed. May 23 I will be delivering a webinar, through Thompson Publishing, that will explore the many issues emerging from the explosive popularity of social media:

• Where do you draw the line on when and how much an employee can engage with social media?
• Is it lawful for a recruiter, HR, or a supervisor to peruse the Facebook or Twitter pages of an employee or potential hire?
• Will blocking employee access to these sites at the workplace impact productivity?
• What are the privacy ramifications of social media on the workplace?
• Is it possible to control employees’ use of social media without violating the National Labor Relations Act or other employment and civil rights laws?

These are risky times for employers regarding social media (ok, just one of many risks for employers!) so I hope you will join me.

Click on the link to register:

http://www.thompsoninteractive.com/site/offer.jsp?promo=001554EM&priority=00295102745

The receptionist, Martha Diane Townsend complained to Grey-Allen that Hugh Benjamin sexually harassed her over a two year period.  Grey-Allen conducted an investigation after informing Benjamin he would have to work from home.  Grey-Allen discussed the complaint with a management consultant that had been hired by the company.  When the company president, Michelle Benjamin, found out that Grey-Allen revealed the investigation to the consultant, she terminated Grey-Allen.  At this point, no EEOC charge had been filed. (Townsend later sued and won a jury verdict back in 2008 for $30,000.)

Grey-Allen sued for retaliation.  Makes sense, right? Well, the Federal Court for the Southern District of NY dismissed Grey-Allen’s claims holding that Title VII does not protect against retaliation arising from an internal investigation that occurred before any EEOC proceedings were initiated.  The Court reasoned that Grey-Allen did not participate in protected activity under the participation clause of Title VII’s anti-retaliation provision.

Now I have read Title VII and, well, the Court is correct, although the law doesn’t make sense when you think about what the retaliation provision is really intended to protect – participation in any proceeding – internal or external. But, that is not the reality.

Some of you may actually be scratching your head and thinking back to the U.S. Supreme Court’s decision in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty. If you remember that case, Crawford participated in an internal investigation and noted to the investigator that she had experienced the same harassment from the alleged wrongdoer.  The Court found that Crawford had opposed a practice – namely the harassment of her boss.  I always thought the Court cheated us by not discussing why that case didn’t fall under the participation clause.

Back to Grey-Allen. On Appeal, the Court said the participation clause concerns the EEOC’s enforcement powers and investigations procedures. So, Grey-Allen is out of luck and is afforded no protection. One of the Appellate Judges actually noted it was unfortunate that Title VII did not protect internal investigators.

As investigators, all we can do is the best we can do. And, hope that state law provides protections where Title VII fails.

Martha Diane Townsend et al v. Benjamin Enterprises et al, U.S. Court of Appeals for the 2nd Circuit, No. 09-197.

Bashir filed complaints internally with HR and externally with the EEOC, and was ultimately fired from her position in 2010.  Last week, a jury ordered AT&T to pay Bashir $120,000 in actual damages plus $5 million in punitive damages.

A few lessons from this case:

1. Train managers and employees that picking on someone or treating them differently because of their religious beliefs or dress is unlawful and would violate your policies.

2. Managers should also be trained to understand the nuances of religious accommodation – handling requests, options for accommodation, as well as hardship issues.  All requests must go through HR and hopefully get approval from your employment attorney.

3. Focus on respect in the workplace – in addition to having a policy, make respect a key value and part of the mission of the company.  Focus on inclusion, not exclusion.

4. Be responsive when you get a complaint and follow your policies. Apparently, AT&T had a great policy, but failed to follow it.

Have you ever said or written something you regretted and wished you could take it back? We all have at some point.  Being accountable for our words and actions in the workplace (and elsewhere) is absolutely critical.  I have been spending more and more time coaching executives who misbehave and at the end of the day, it is typically their words that get them in trouble.

The reality is, Etch A Sketch is just a toy and we have to live with the consequences of our words.

Here are some reminders for HR and management:

1. Please do not think of your direct reports as your family – your family doesn’t sue you for harassment or discrimination because of your jokes or comments.

2. Don’t assume that just because someone hasn’t complained, that everything you say or do is ok.  Employees are not required under any harassment laws to  tell the offending person to stop.

3. Remember your role – you have power. Power to change the terms and conditions of someone’s employment.

4. Saying “I was only joking” doesn’t help. You say it often enough and clearly you aren’t joking or know when to stop.

5. Pay attention to people’s reactions to jokes, comments, stories, etc. Often you can tell by watching the nonverbal to see how someone responds to you and what you said.

I hope you will join me on March 27, 2012 (10:00 PST/1:00 EST) as I deliver a fast-paced webinar jammed full of tips and tools to help you get those witnesses to talk.

You’ll Learn:

• How much information do you provide the alleged wrongdoer? Other witnesses?
• How to effectively answer those tricky questions: Will I be fired? Will the alleged wrongdoer be fired? Hey, I don’t want to be involved, do I have to talk to you?
• Keys to avoiding loaded, leading, compound and accusatory questions
• Valuable tools for dealing with hostile or uncooperative witnesses
• To efficiently use documents and other evidence with your witnesses
• To question witnesses you feel are not being truthful

You can sign up at :http://www.thompsoninteractive.com/site/offer.jsp?promo=001526EM&priority=00295102293

How do you start the dialogue ? Come join me for a webinar this Thursday called Tough Talks: How to Conduct Difficult Employee Discussions as I tackle some of your most difficult scenarios. Learn the best approaches to handle employees who:

• Have personal hygiene or odor issues
• Use vulgar or foul language
• Gossip
• Take excessive smoking breaks
• Severely disrupt the company or office, but don’t directly break any company rules such as gossiping and speaking in a very loud voice
• Engage in religious/political discussion

You can also call in and ask a question!  You can register using the link below.

http://www.businessmanagementdaily.com/glp/41484/index.html?campaigncode=428AW

Yesterday (March 5, 2012) I delivered a program at the SHRM Employment Law and Legislative Conference in Washington, DC entitled Beyond Discrimination Claims: What Else Can You Be Sued For?  My first topic was on: defamation. I couldn’t resist quickly revising my program to include the following scenario for discussion:

Employee Sandra stops an HR Manager in the Company cafeteria and quietly states she is upset to learn that the Company’s health insurance carrier refuses to cover contraception.

 Manager Bill overhears the conversation and says to a small group in a rather loud voice, “Contraception coverage? What does that make her? It makes her a slut, right? It makes her a prostitute…she wants to be paid to have sex…Maybe she should spend more time getting her reports out on time.” 

Now, this is pretty extreme and most bosses wouldn’t say such a thing. But, then again, nothing really surprises me in the workplace. Here is what a plaintiff (your employee) would need to prove in her defamation claim: 1) a false statement of fact was made that is 2) unprivileged, 3) about an employee, and is 4) disclosed to a third  person, and 5) causes damage to an individual’s reputation, or causes public ridicule, shame, hatred or contempt.

As an employer you have what we call a Qualified Privilege in most states (by statute) that provides you with a defense to a defamation claim when you make a statement 1) without malice,  2) said to those with a need-to-know, and 3) the communication is about performance or qualifications.

In the scenario above – let’s assume the employee is a good performer but did turn in a report late. What would happen? The Boss is technically making a true statement when it came to the timeliness issue. But, he is also making inflammatory and likely false statements about Sandra and her lifestyle.  Some may say the boss is expressing an opinion – but when bosses make statements – many employees take them as truth. Also, here the Qualified Privilege would not apply as Bill’s comments are made with malice.  The bottom line is – the Bill the Boss will likely lose.

Here’s how can you prevent defamation claims:

1. Keep the circle small of those who have a need-to-know about an employee’s performance. Likewise, limit discussions about an employee’s performance or any employment actions.

2. References. Many defamation claims arise out of references – limit those who can give them and be truthful.  Most attorneys recommend only giving basic employment information: name, dates of service, ending salary.  Obtain an authorization and release from any employee who wants you to give them a reference.

3. Watch your actions and your words.  Someone asks you if Jill is a good employee and you roll your eyes, some jurisdictions will find you liable for defamation.

On Wednesday, I will be delivering a 90-minute webinar on the practical and legal implications of investigating a C-level employee, public or elected official or member of the legal or human resources department.

You’ll Learn:

• Best practices for conducting this type of investigation, including who to involve and what to report
• Tips for overcoming the legal issues associated with investigations of high-level or sensitive employees, attorneys or officials including:
  • Privilege issues
  • Confidentiality
  • Conflict of interest
  • Ethical obligations
• Strategies for avoiding negative publicity as a result of the investigation

Plus in this webinar format, you can ask questions via the online chat function without having to reveal your organization or name.

I hope you will join me.

http://thompsoninteractive.com/site/offer.jsp?promo=00119666&priority=00295101316

The most common mistake I see is that investigators don’t dig deep enough during the investigation interview.  For example, the complainant is a white 55 year old female.  She describes feeling “uncomfortable” with the alleged wrongdoer.  Most investigators will simply write down “uncomfortable” without asking what the person specifically meant by “uncomfortable.”  The complainant may have an entirely different definition than the investigator who is a 35 year old Hispanic male.  Or, a 25 year old white female.  Why is this important? You need to know what the words mean to the witness.  When you query the witness she explains,  ”I was scared, nervous. I was afraid for my safety.”  Okay – now you are getting somewhere. Her definition is a bit more extreme that you might have anticipated and gives great insight into what she was feeling.  By asking the witness to more fully describe a particular word you will be able to dig deeper and find out more about the facts.  If you had neglected to probe further you might miss – or misinterpret – what the witness is telling you.

Another common mistake I often see is when the investigator has not remained neutral. He or she comes to the table with some bias towards one of the witnesses, the complainant or the alleged wrongdoer.  It could be the investigator is too close to the situation, knows the parties too well or has preconceived notions about the parties because of past experience.  Staying objective is a critical part of conducting an effective investigation.

A third common mistake I see, and one that has a potentially perilous outcome for the employer, is when the investigator reaches a conclusion too early.  This happens when the investigator is engaging in the second mistake noted above – they are biased.  The investigator feels he or she knows what happens and does not conduct a thorough investigation.  They stop too early, don’t attempt to get corroboration, and worse yet, make assumptions without gathering all the facts.

Stay tuned for future posts about other investigation mistakes. Please share any common mistakes you see!

To register or learn more about the California Employment Law Update: http://celuonline.com/workshops/

On August 9, 2011, the California Court of Appeal ruled in Pantoja v. Anton (No. F058414), that a plaintiff may present evidence the defendant engaged in harassing conduct towards others to make their case even if the conduct occurred outside of the plaintiff’s presence and at times when the plaintiff was not even employed.

This case has many implications with the most significant being seemingly unrelated conduct will now go into the plaintiff’s bucket of evidence.  The example I use in my harassment training is that I look at everyone in the workplace as having an invisible basket on their back.  My hope for everyone is that only good things go in that basket – compliments, rewards, acknowledgements of solid performance.  Alternatively, the basket can be filled with harassing, derogatory or discriminatory comments, inappropriate jokes, touches and a variety of other “unwelcome” conduct.  If the basket gets too heavy, the employee, or shall I say the soon-to-be plaintiff will have an easier time making their claim because they will have satisfied the “severe or pervasive” prong of the harassment cause of action.

The Pantoja case helps that basket get filled faster and with potentially more dangerous evidence.  Remember who sits on a jury: twelve pissed-off employees.  So, the more evidence the jury sees that the defendant – your employee – engaged in a pattern of bad behavior, well, you know how the story ends.

Here are a few tips to minimize risk:

1.   Investigate complaints even if someone did not experience the harassment first-hand.  Often HR professionals or investigators will not investigate a complaint where the witness did not experience the harassment first-hand.  Big mistake.  Remember, once you learn of inappropriate conduct you are on notice.  Investigate all claims whether first-hand, second-hand or rumor.

2.  Pay attention to those who have witnessed harassment. During the course of your investigation in you gather information that several witnesses observed the inappropriate conduct.  Or heard about it.  Remember to follow-up with these witnesses periodically to make sure they have not been the recipient of the unwelcome bad conduct themselves.

3.   Stop the bad behavior.  Don’t ignore complaints because you may not trust the complainant, or you think the complainant is a whiner.  Whiners can spend your settlement money just as easily as a more credible complainant.  Don’t ignore complaints against rainmakers, those in the “C” suite or those who wield power.  The law doesn’t say you have to fire everyone that has misbehaved – you must stop the bad behavior and make sure it doesn’t happen again. Protect your employees and create a safe and respectful workplace.

If you have any questions about this case, or need any help with investigations or training, please give me a call.