The Top HR Risks You Can't Ignore in a Down Economy - How to Protect Yourself by Argentum

The Top HR Risks in a Down Economy â&#x20AC;&#x201C; How to Protect Yourself Allison West, Esq., SPHR Employment Practices Specialists

IT â&#x20AC;&#x2122;S ALL IN WHO YOU KNOW

Who do you know? Three Caucasian women were friendly with African American co-workers in the workplace. Other colleagues did not think this was a good idea and would say “we missed you ladies at the [Ku Klux] Klan meeting last night.” The women were also were forced to view racial graffiti and listen to racial slurs and racist jokes. BARRETT v. WHIRLPOOL CORPORATION (c) Copyright 2012 Employment Practices Specialists.

Who do you know? 

Associational Discrimination

 Workers who are not members of a particular protected

category, but who have a relationship with “protected” persons



Include proper language in your discrimination and harassment policies  The Company also prohibits harassment based on the perception

that an employee, applicant, or independent contractor has the characteristics of someone in a protected category, or is associated with a person who has or is perceived as having the characteristics of someone in a protected category.



Add to your training!

We Are Family

Meet Laurie Chadwick • • • •

Mom to one child, age 11, and triplets, age 6 Excellent performer Encouraged to apply for Team Lead

She was asked how she would respond if an associate did not complete a project on time. Frustrated with Laurie’s response, her supervisor stated, “Laurie, you are a mother. Would you let your kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?”

Really? "It was nothing you did or didn't do. It was just that you are going to school, you have the kids and you have a lot on your plate right now....If the three [promotion] interviewers were in your position, they would feel overwhelmed."

All in the Family  Family Responsibility Discrimination (FRD)  is a form of sex discrimination in which workers are treated

worse/differently because of their caregiving responsibilities for children, elderly parents, or ill relatives

 No specific law  Employers lose 90% of these cases  The average award is $100,000 and the largest award

is $25 million

Be carefulâ&#x20AC;Ś

Playing in the Sandbox

Red Flags for Discrimination • • • • •

You have a bad attitude You don’t fit in You’re not a team player You’re not a culture fit The all time winner – We are terminating your employment because you are an at-will employee

Of course I use FB and other sites for our recruiting. I find the information very reliable.

The Big Dâ&#x20AC;ŚDiscrimination

Candidate’s FB page says…

Downside of FB  Using protected characteristics – even subconsciously  E.g., recruiter views candidate’s Facebook profile

and sees they have recently ‘liked’ The American Cancer Society Facebook Fan Page.  assumptions about the employees health – suffers from cancer? Undergoing treatment?

Beware… • Apex Company uses LinkedIn as a key tool to find candidates. • Recently, Apex hired approximately 18 candidates using groups on this site. • Given this success, the company concludes that LinkedIn is the best method to find qualified candidates. • Unfortunately, using only LinkedIn resulted in only a couple black candidates being considered. – Quantcast.Com reports that only 7% of the users on LinkedIn are black.

Look out for LinkedIn â&#x20AC;&#x201C; Consider the risks of managers giving recommendations to current and former employees â&#x20AC;&#x201C; Restrict posting job openings before you have informed your soon-to-be-terminated employee

Don’t forget off-duty statutes • Approximately 28 states • E.g., California law restricts employers' right to demote, suspend, or discharge an employee for certain lawful conduct that occurs during nonworking hours and away from the employer's premises.

TXTUL HRSMNT - NO LOL

B Crfl  New form of harassment  Include cell phones, texting, SMS, instant messages  Your policy  Harassment training  Look for increase in cell phone usage  Be careful about monitoring texts or other electronic

communications

You said what?

I can’t believe they said that…  Patrick Longbehn was a 34-year-old police officer with the City of Moose Lake who was terminated.  Because he was dating an 18-year-old woman, certain individuals, had referred to Longbehn as “Pat the Pedophile.”  Because this nickname was raised in connection with his termination, Longbehn sued the city and various individuals for defamation.  Jury awarded  $230,000 for past and future harm to Patrick's reputation, mental distress, humiliation and embarrassment;  $3000 for future health care expenses;  $90,000 for past and future wage loss;  $250,000 for punitive damages

You didn’t really say that… • Dave rots at excel • Lydia is one of the meanest people I have ever met. • Charlie left the company the same time we discovered $100k was missing from our account.

Defamation  False

statement of fact  Unprivileged  About an employee  Disclosed to a third person  Causes damage individual’s

reputation, or public ridicule, shame, hatred or contempt

Defamation Defense 

Qualified Privilege

statements made without malice  to those with a need-to-know  about job performance or qualifications  Truth is a defense! 

Be Proactive 

References  Authorization

and release  Specific guidelines  Limit

who can respond  Only verify employment  Eligibility for rehire

 Reference

letters as part of settlements – use

caution  Be careful when omitting negative information!

Be Proactive 

Blacklisting 

  

criminal offense in some states

Accurate and objective personnel file Limit discussions regarding terminations, performance, other employment actions Watch your actions, not just your words

I believed you!

We promise…  Employer promises Jarrett that if he leaves his old

job, he will receive part ownership after 10 years.  Company prospers over the next ten years.  Just before Jarrett was to be made part owner, the employer sold the business leaving Jarrett without any ownership.  Jarrett sues and…

And the verdict isâ&#x20AC;Ś The jury awarded Jarrett $800,000. The Court of Appeals affirmed the verdict.

Fraud ď žEmployer

A job for life…not Be truthful  Avoid overselling 

   



job security: “permanent”, “you’ll be here forever,” “as long as you do a good job” stability of the company: “you’ll make a bundle on our stock option plan” career development: “everyone gets promoted in their first year with us,” guaranties of personal development Salary inducements: "most competitive" salaries, "best" benefits, "assured" growth, and highly favorable comparisons with the applicant's existing job.

An employer should make only factual representations that can be proved.

Be Proactive 

In some states: misdemeanor to fraudulently induce a person to move from one place to another in order to work 

  

E.g., Cal Lab C §§970-971 and double damages! Lab C §972

Avoid making promises or guarantees you can’t keep Interview checklist Follow your handbook!

THE HIGH CO$T OF GETTING EVEN

It stinks ＄Ronald Luri, 55, accused Republic Services Inc. of retaliation and of forging documents critical of his job performance after he refused to fire three of his employees -- all about 60 years old -- on the grounds that such actions would constitute age-discrimination. ＄Jury awarded $3.5 million – lost wages and $43.1 million in punitive damages. (c) Copyright 2012 Employment Practices Specialists.

Easy Claims to Make  Employee engaged in protected

activity by

 Opposition  Participation

 Employer knew about the protected

activity  Employer took materially adverse action

Easy Claims to Make  Examples of adverse action        

Refusal to hire Denial of job benefits Denial of promotion Demotion Suspension Reprimands Negative job reference Termination

Be Proactive  Promptly and thoroughly investigate all claims  Secondary review of employment decisions  Evaluate the employment decision with an objective standard how a reasonable person in the employee’s position would view the action considering “all the circumstances”  Listen to complainers (e.g., ASK employees why they are refusing to or begrudgingly follows orders)  Apply Company rules consistently

Be Proactive  Watch out for the causal connection  Document, document, document  Policies  Clear complaint procedures  Train managers  Limit those who “need to know”  Beware of unjustified negative job reference  Follow-up is key!

The Bully and the Bottom Line

What’s all the fuss?  Researchers find bullying more harmful than

sexual harassment* 25% of targets and 20% of witnesses leave their jobs 4/08: Indiana Supreme Court upheld a verdict of $325,000 against a bully *American Psychological Association (2008, March 9). Bullying More Harmful Than Sexual Harassment On The Job, Say Researchers. ScienceDaily. Retrieved May 8, 2008, from http://www.sciencedaily.com- /releases/2008/03/080308090927.htm (c) 2013 Employment Practices Specialists.

Bullying Is Repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: ď&#x192;&#x2DC; verbal abuse ď&#x192;&#x2DC; offensive conduct/behaviors (including nonverbal) which

are threatening, humiliating or intimidating ď&#x192;&#x2DC; work interference -- sabotage -- which prevents work from getting done. Source: The Workplace Bullying Institute WBI, 360.656.6630

Bullying Isn’t  Legitimate authority to control work and

performance  Providing constructive feedback  Political correctness  Setting reasonable goals

Bullies bully because…  EMPLOYERS LET THEM  Typically  No consequences for their

conduct  In positions of power  They get something out of it

Rationalizing bullying behavior  Oh, that’s just Joe…You know      

how Betty is… If I ignore it, maybe it’ll go away We’ve lived with it this long, we can tolerate it a bit longer I have to think about the bottom line, don’t I? I’ll deal with it when the behavior really gets out of line But, Joe/Betty are such good performers! I tried to get them to stop…but they just wouldn’t

But bullying isn’t illegal! Brenda Boss

 pushed and shoved Emma Employee

(assault and

battery, potential OSHA violation),  locked her in the conference room (false imprisonment),  spread rumors about her performance (defamation),  deliberately left Emma’s written performance warning on the common area copier (invasion of privacy); and  continuously yells at Emma in department-wide meetings, in the hallway and on the phone (intentional affliction of emotional stress).

So… Emma went to see Henry HR, and

 claimed she was suffering from a psychiatric injury

from her bullying boss (workers’ compensation and FMLA),  wants an accommodation (ADA),  showed him evidence Brenda changed her time sheets and is owed overtime for the past 18 months (FLSA/state wage and hour violations – penalties!), (c) 2013 Employment Practices Specialists.

And then… Emma said

 she informed

Brenda she was pregnant and was told she would not get a promotion because she is “a breeder” (gender and pregnancy discrimination),  after she complained in the company newsletter about her denial of promotion, Brenda changed her work hours, OT was denied, she was excluded from training and was the only one in the department who didn’t receive a bonus (retaliation)

Finally… Emma whimpered that she can no longer sleep, has stomach ailments and is now addicted to antidepressants (more intentional infliction of emotional distress), and therefore feels she has no choice but to resign (constructive discharge)

Tips and Tools to Stop / Prevent Bullying

Be Proactive Your Culture:

 Is respect a core value?  Limit hierarchy / encourage transparent

Be Proactive  Zero tolerance for bullying must start at top levels of

management

 Who is on notice?

 Walk the talk – DON’T REWARD BAD BEHAVIOR  “No jerks at work” rule  What words do you use to identify inappropriate

behavior?  Are bullies publicly rewarded?

Be Proactive  Have a policy!  Civility / Respect in the Workplace / Code of Conduct / Anti-Bullying  Caution: Don’t have a policy if you don’tt plan on following it!  Accountability  Tie all aspects of conduct to financial rewards /

evaluations / career advancement

 Keep track of turnover statistics by department,

manager and unit

Thank you! Connect with me! LinkedIn: http://www.linkedin.com/in/allisonwestesqsphr Twitter: https://twitter.com/#!/AllisonWestEsq Blog: http://www.employmentpractices.net/blog/feed/