EEOC Study of Workplace Harassment Urges Employers to Do More Prevention

EEOC sealRecently, the Equal Employment Opportunity Commission (“EEOC”) issued the results of a study of workplace harassment.  The agency convened a task force to conduct this study in January 2015.  The task force issued a report in June 2016. Task Force Report.  It concluded that since the Supreme Court recognized that Title VII of the Civil Rights Act prohibits sexual harassment as a form of employment discrimination 30 years ago, “we have come a far way since that day, but sadly and too often still have far to go.”   The report addresses not only sexual harassment, but also workplace harassment claims based on any one or more of race, disability, color, age, national origin, ethnicity, or religion.

Workplace Harassment Poses a Very Real and Costly Business Risk

The task force’s study examined the current scope of unlawful harassment in American workforces.  It noted that about one-third of the nearly 90,000 discrimination charges filed with the EEOC in fiscal year 2015 included workplace harassment allegations.  Those filing harassment charges represent the tip of the iceberg, because “[r]oughly three of four  individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.”  The report identifies the following reasons for the underreporting of unlawful harassment claims:  fear of disbelief of claims, fear of inaction on complaints, blame, ostracism, or retaliation.  Workers, instead, develop their own work-arounds, such  as avoiding the harasser, denying or downplaying the seriousness of the situation, ignoring, forgetting, or enduring the behavior.  It finds the filing of a discrimination charge or pursuit of formal action through an employer’s complaint procedure to be “the least common response to harassment.” (more…)

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Major Changes Coming to Management and Overtime

Group of businessman carrying briefcase run around a clock 3d illustration

Timeline

On March 14, 2016, the U.S. Department of Labor (DOL) submitted its final overtime rule to the Office of Management and Budget (OMB) for review. Review by the OMB is the final step before publication of the final rule and generally takes between four and six weeks. This means that employers may well see the rules come into effect before mid-May. Indeed, many believe that this is likely the DOL’s strategy, as publication of the Final Rule after May 16, 2016?would put it subject to the Congressional Review Act under the next presidential administration, giving Congress and the next administration the opportunity to nullify the rule.

Changes in Overtime Laws

Currently, the Fair Labor Standards Act (FLSA) requires all employees in the United States to be paid at least the federal minimum wage for all hours worked. In addition, these employees must receive overtime pay equal time one-half their regular rate of pay for all hours worked over 40 hours in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive employees, among others. (more…)

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Employee Relations by Social Media Puts Employers in Peril

town-sign-1148028_1280 Employee Relations and Social Media Create a Toxic Mix

Businesses use social media to build their brands.  Social media discussions, however, of employee relations issues frequently harm an employer’s brand. For example, recently a soon-to-be former Yelp employee blogged about her impoverished lifestyle because of the Bay Area’s high cost of living and the meager wages that Yelp paid her. She called her post Open Letter to My CEO. Yelp’s CEO then wrote five tweets about the Yelp employee’s post, including one in which he denied any personal responsibility for the decision to fire her and any connection between her blog post and her dismissal. CEO’s Response  (see Feb 20 Tweets). In her own Twitter post, however, the employee disputed the CEO’s explanation for her employment’s termination: “[T]he HR lady & my manager straight up told me that the letter violated Yelp’s ‘Terms of Conduct’ and that’s why they had to let me go.” An online controversy ensued between those that supported the employee as a champion of exploited workers and others that viewed her as an entitled Millennial who needed to accept the responsibility for her situation and to overcome it by working more than one job and getting roommates. For an example of the entitled Millennial side of the argument, see Open Letter to Millennials. (more…)

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Temporary Employees or Employment Service: Beware the Issues With or Without Insurance Coverage

Stamp(275)For those companies and manufacturers, who use temporary employment services to provide employees to conduct their usual and customary business, a serious situation can arise where the company can be left without Workers’ Compensation Coverage.

This can occur when the “temporary employment service” contract contains provisions that the temporary employee is actually employed by the temporary employment service, that it will be responsible for all benefits, Workers’ Compensation coverage etc. This is “all well and good” so long as there is a Workers’ Compensation policy in effect providing coverage to the “temporary employment service” for any injuries to the temporary employee provided to the company or manufacturer. (more…)

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When Must Employers Give Time Off for Voting?

uncle sam wants you to vote

State Laws Frequently Require Employers to Allow Employees to Miss Some Working Time on Election Day to Vote

With Election Day coming soon, employers may confront employee requests for time off to vote. Some employees may even expect their employer to allow them to miss work with pay while they go to the polls. The laws regarding time off from work to vote vary by state. Most states require employers to allow employees to miss working time to vote, only if their workers have less than a stated number of uninterupted non-working hours while the polls are open. Some states oblige employers to pay their employees that take statutory voting leave, but others do not. Employers that violate these laws face criminal prosecution for a misdemeanor, which may subject them to fines and incarceration of a year or less. (more…)

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Missouri Supreme Court Rewrites and Enforces Non-Compete Agreement

Ball and chainThe Supreme Court Avoids the Opportunity to Apply Its Prior Reasoning Critical of Overly Broad Non-Competition Agreements

The Court decides cases involving non-competition and non-solicitation agreements only infrequently.  In 2006,  the Missouri Supreme Court balanced the right of a former employee to compete against a former employer versus the employer’s right to use non-competition agreements as protection against unfair competition in Healthcare Services of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. 2006) (en banc), Copeland decision.  The court recognized two types of unfair competition–the former employee’s either misuse of  the employer’s trade secrets or the employee’s misuse of customer contacts developed at the former employer’s expense. (more…)

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Social Media Recruiting Exposes Employers to Liability Risks

Recruiters and Employers Increasingly Look for Job Candidates by Social Media

Recruiting experts have noticed significant growth in the use of social media as a recruiting tool. The vast majority of employers and search firms admit to their use of social media in the recruiting process. They further expect its growth to continue. Check out the social media recruiting stats here and how not all social media prove equally valuable as a recruiting tool here. (more…)

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Court Invalidates NLRB Rule Streamlining Its Election Procedures

A federal district court has ruled that the National Labor Relations Board (“NLRB” or “Board”) lacked a quorum when it held a vote to adopt a rule streamlining its union election procedures. The Board held the vote on December 21, 2011. The rule took effect on April 30, 2012 as reported earlier in this blog.  The court issued its decision on May 14, 2012. (more…)

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EEOC Warns Employers That Use Arrests and Convictions to Eliminate Job Applicants

EEOC Updates Its Guidelines Regarding Arrest and Conviction Records in Employment Decisions

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) recently issued new enforcement guidance about employers’ use of arrest and conviction records as the basis for employment decisions. The guidance updates existing EEOC interpretations, which it last issued in 1987 and 1990. In addition to the enforcement guidance, the Commission also simultaneously published a series of related questions and answers as a simplified appendix. The EEOC analyzed the use of arrest and conviction records in view of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. (more…)

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What Risks Do Unpaid Internships Pose to Employers?

mortar board and diplomaNew Graduates Face Poor Job Prospects Again

Recent reports provide little optimism for new college graduates in the job market. They continue a trend since the beginning of the Great Recession. Given the poor prospects for employment, many take unpaid internships in the hopes of gaining both contacts and job related experience that may improve their employment prospects. On the other side of the equation, employers view interns as free labor. The too good to be true rule, however, makes some employers wary about the wisdom of taking advantage of this “free lunch.” (more…)

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