In the post on Sunday 8/9/20, we saw that a Menards manager ignored sexual harassment complaints (and got the employer in hot water). Menards is a home-improvement chain. There was a complaint that an assistant manager sent pornographic messages to several female subordinates (and more, yes more, see the post). It took 1-1/2 YEARS for the department manager to act on the first few complaints. And then what did the manager do? See the post. Later, after more complaints, the assistant manager was investigated and fired. The EEOC filed suit.
TAKEAWAY: Train managers on what to do, and when, after a complaint is received. Help them help you. Get an attorney involved in the training.
The post on Monday 8/10/20 showed us that punitive damages are meant to punish: so what happens when management watches and ignores complaints of female-on-male sexual harassment? Yes, this is Auto Zone in the news again. We do not often hear about female-on-male sexual harassment, but it does happen, and here it happened in a big way. Keith was a part-time commercial driver. He had only worked at Auto Zone for a few months when his co-worker, Christina, began to sexually harass him. She began groping him and using sexually explicit language at work. Examples are in the post, including grabbing his crotch. Did Auto Zone have a defense? Well, it does have a written sexual harassment policy which requires managers to investigate each complaint. Managers are required to take an on-line test to assess their knowledge of the policy. At Keith’s store, no copy of the handbook containing the policy was to be found, there was no in-person training on the policy, and it was super-easy for managers to pass the test (see the post). Not only that, but the store manager said … (see the post). Ok, there’s a policy. Keith first complained to his direct manager who had witnesses some of the sexually explicit statements and groping . The manager’s response (which is not what employers want to hear) is in the post. Then Keith complained to the store manager. The steps taken by the store manager are in the post. The store manager also involved the district manager who did nothing except make a comment to Keith – see the post. Other things the direct manager and store manager did (again, not what an employer wants to hear) are in the post. Keith eventually quit after his complaints brought no relief. Then he sued for sexual harassment, constructive discharge, and retaliation under Title VII (as well as state law claim). Almost all claims went to trial; the jury awarded $100,000 in compensatory damages and $600,000 in punitive damages for sexual harassment. That was later lowered to $200,000. On appeal, the court struck the punitive award. The analysis and basis for that action are in the post. But they also provide a good roadmap for employers to protect themselves.
TAKEAWAY: It sounded good for yesterday’s post, so let’s say it again: Train managers on what to do, and when, after a complaint is received. Help them help you. Get an attorney involved in the training.
The post on Tuesday 8/11/20 reminded us that the pandemic has changed how planned community (condo and HOA) boards do business. Pre-COVID, most Board and Association member meetings were held in person (and were required to act that way by their Governing Documents). Post-COVID, meetings may have come to a screeching halt or, it permitted, occurred via telephone conference or other virtual means such as Zoom, WebEx or Microsoft Teams. See the post as to whether that was required. Then consult a community association lawyer as to the requirements for meetings of your association.
TAKEAWAY: An attorney well-versed in planned community law can help members and the association ensure that meetings are held, and held properly and legally, during the circumstances created by the pandemic.
The post on Wednesday 8/12/20 was about not if, but how COVID-19 has changed the human resources landscape. First, questions always arise about the difference between a furlough and a layoff. The difference is explained in the post. Next, we see that the interview process has changed. It has gone more (or even totally) virtual; for those that are still conducted in person, safety measures such as those noted in the post are taken. And then there are questions about whether an employer can require an employee to stay home if they think the person is sick (see the post for the answer), whether the FMLA applies to COVID (again, see the post along with our prior blog) and return to work safety protocols and Q&A as listed in the post.
TAKEAWAY: The pendulum has swung completely to the other side when looking at how HR does things – as it must. But whether or not it can swing back, realistically and legally, is to discuss with your HR team and your employment lawyer.
The post on Thursday 8/13/20 was about employees who are scared to return to work or can’t with kids at home (and what you need to know). Different segments of the country – and PA – are reopening at different rates. Sometimes, whoever, when a business is about to reopen, or when it is expanding its offerings, employees don’t want to return to work. But if there is a position available, not returning can adversely affect unemployment benefits. So, what should happen? First, a discussion between the employee and employer. See the post for some of the things to discuss. Next, employees should advise their employers of health conditions that might get special consideration by law (an example of which is in the post). Likewise, if child care if not available due to the pandemic, that may legally excuse the employee from returning to work – and domino relative to unemployment as noted in the post. There is also one other possible basis noted in the post for an employee not to return to work, but this author just can’t see if playing out, or not much anyway.
TAKEAWAY: Employers have the right to recall workers; the employees, in turn, have certain rights that may affect whether or not they must heed the call. An employment lawyer can help either party.
The post on Friday 8/14/20 was about workplace policies all employers should consider before reopening (or even now – it’s not too late)! Some of the things to consider are whether, when and how to reopen; how many employees are necessary to perform the functions that are required at the various stages of reopening; and whether those functions can be performed remotely or must be accomplished in person. Many of those answers ae dependent on the industry or type of business (for example, a restaurant cannot prepare food remotely, but it can take orders remotely). Perhaps phasing in operations is possible (or even preferable). On what to base that decision is noted in the post. Also, there must be a COVID policy that meets CDC Guidelines – and it should be posted as noted in the post. It also involves certain things being provided by the employer – see the post. There are more tips in the post too.
TAKEAWAY: Whatever is right for your business, make sure to have it checked for legal compliance and then put it in writing for you and everyone else to follow.
Finally, in the post yesterday 8/15/20, we read that a lawsuit claims employee racial discrimination at Lake Winnepesaukah. So, what happened? Eric was hired as the HR Manager in January 2019. He was promised a certain salary, with increase potential, and he was satisfied with that. Until, due to his position, he saw that the salaries of co-workers were more than what he was being paid and he narrowed down the difference. See the post. That was bolstered by the fact that almost form the start of his job, he had near-daily problems with race discrimination, including employees using the N-word, African-American employees being treated less favorably and paid less, and stereotypes and positions assignments based on race. Some specific examples are cited in the post (and also are in the lawsuit Eric filed).
TAKEAWAY: Pay those performing substantially similar duties the same unless there is a legal basis upon which to rest the wage disparity.