Tuesday November 13, 2018

EEOC sees retaliation workload rise: How to stay off its radar

The increase in sexual harassment charges filed with the Equal Employment Opportunity Commission have made headlines this fall, but that’s not the only eye-opening statistic coming out of the agency.

Retaliation claims a bigger share of EEOC charges

Retaliation claims and lawsuits now make up almost 50 percent of the EEOC’s workload. According to the most recent stats available from the agency, fiscal year 2017 saw retaliation jump from 46% of all charges filed to 49%, despite a drop in the total number of retaliation claims (from about 42,000 to 41,000). Retaliation claims under Title VII increased from 36% to 38% of filings.

Those figures should be a wake up call for all employers to review what constitutes retaliation under the law and how well policies and training prepare your organization to respond when you’re hit with a claim.

Protected activity

All employees have a clear right to raise concerns about, express their opposition to, or complain if they believe an employers practices or actions are illegal under the various statutes the EEOC is charged with enforcing.

Whether an employee slips a card into a suggestion box, hires a lawyer or contacts the commission, your organization may find itself paying out compensation if you punish, reprimand or take some other “adverse action” against the person who makes such a complaint.

Adverse actions can range from firing a worker after they point out possible safety lapses, demoting someone who claims she is not getting overtime pay despite working extra hours, or passing over an employee for a promotion after they request accommodation for an injury or disability.

While recent court cases make it clear that an employee can’t claim retaliation for action you take after they leave the company (like suing for breach of a non-compete agreement, for example), if the complaint is made while they are still employed, it may not matter if reported violations are unfounded. As long as an employee acts in good faith in making the complaint, taking any action against them can land you in front of a court or paying an expensive settlement to avoid a legal battle.

How to avoid retaliation claims

To protect against tripping retaliation land mines, you need to keep three major factors in mind

  • Timing of any actions
  • consistent disciplinary treatment of all employees, and
  • clear and complete documentation of any and all performance issues.

Try to avoid disciplining or counseling employees immediately after they engage in a protected activity. Of course, if the reason for your action is compelling and unrelated to that activity, you need to move forward regardless.

But if you do have to take action, make sure that your decisions are the same as they would be for any other employee. And, while an objective, detailed and complete record of any performance issue is always important, it becomes absolutely critical if you need to take action soon after a complaint is made.







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Gaming company’s ‘bro culture’ sparks gender discrimination lawsuit

Two women are suing “League of Legends” video game developer Riot Games for discrimination, harassment, and violation of the California Equal Pay Act.

In McCracken v. Riot Games, one current and one former employee of the company seek class action status for the suit, alleging that Riot denies women equal pay and limits their career advancement due specifically to their gender. The proposed class includes hundreds of current and former female Riot Games employees located across California.

The ex-employee claims she was not compensated for taking on extra work after her supervisor left the company. And, she says, when the company went looking for a replacement for her former boss, they interviewed three men but never gave her a chance to interview.

The current employee alleges illegal discrimination against women, saying her supervisor would only consider woman for junior positions, because he was uncomfortable with men having to do those jobs. When he took over as head of her new department after she’d transferred out of her original job, she says she was told she “had a target on her back,” and should look for another transfer or be fired.

Toxic “bro” culture

The women believe that the “bro culture” at Riot Games arises out of its focus on hiring hardcore gamers, many of whom are teenage boys. That focus, the plaintiffs say, translates into an unwritten policy and practice of discriminating against women. As a result 80% of Riot’s 2,500 employees are male.

The legal battle was launched following an investigative report into Riot’s “toxic culture” by gaming news and review site Kontaku. Following the report, the company issued a public apology and pledged to improve its efforts to ensure an environment of “Inclusivity, diversity, respect, and equality.”

The suit says the company continues to permit sexual harassment, misconduct and bias that create a negative work environment for women and continues to retaliate against women who report misconduct.

The lawsuit filed in the Superior Court of the State of California, County of Los Angeles seeks all “underpaid” wages due to the plaintiffs and punitive damages.

Time for self-assessment

The tech industry’s workforce has been dominated by men from the beginning and has recently been especially hard hit by claims of sexism. But every employer needs to take “Inclusivity, diversity, respect, and equality” very seriously and look hard at its own culture for signs of toxicity.

Behavior that has been viewed as “boys being boys” can spill over into discrimination and harassment complaints even if the objectional acts or speech are not specifically aimed at workers of another gender. And, as this case shows, when “bro culture” spills over into hiring and promotion practices, the potential legal and financial consequences can be huge.

Cite: McCracken et al. v. Riot Games et al., Dist. Crt. of CA, C.D.,  No. 18stcv03957, 11/5/17.

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Heads up! Your dress code could be discriminatory

While each company has a different idea of what its employees should wear to work, employers usually have the power to enforce some kind of dress code. 

But with this ability come legal risks if the dress code isn’t applied equally to male and female employees.

Of course, the dress codes for men and women can’t be completely identical. For example, one very common difference is men only being allowed to wear pants, while women are able to wear dresses and skirts as well as pants.

These differences are widely considered reasonable, but things can start crossing into discrimination territory if employers try to force employees to conform to gender stereotypes or violate their religious beliefs.

‘Observe the ladies’

Here’s one recent example of a company trying to get a female employee to dress more femininely.

Chakia Harvell, a salesperson at Wyndham Vacation Ownership in Long Island, NY, claims she was fired for not conforming to female stereotypes in the way she dressed.

When Harvell first started her job, she wore trousers and ties to work. It wasn’t long until she was pulled aside by HR and told to re-examine the dress code. When Harvell didn’t change her clothes, the HR rep told her to “observe the ladies” in the office and mimic their dresses and heels.

Harvell refused, saying the company was trying to turn her into a feminine, stereotypical woman, which she wasn’t. She was eventually fired for lateness, according to Wyndham.

The case is pending, but it represents the great legal risks employers face by forcing gender stereotypes onto employees. Doing this could easily run afoul of laws protecting workers based on sex and gender identity.

Other issues

As well as sex discrimination, employers need to be wary of religious or national origin discrimination in their dress codes as well.

The EEOC says employers can establish a dress code that applies to all employees, but there may be some exceptions. For example, a disabled employee or a religious one may need a reasonable accommodation that violates the typical dress code.

Also, the EEOC says dress codes must be enforced consistently. If an employer allows workers to wear t-shirts and jeans but not traditional ethnic attire, this could lead to a national origin discrimination lawsuit.




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Why it pays to praise: 20 ways to say ‘good job’

You probably realize how powerful your words can be when you’re praising someone for a job well done.

By recognizing that person at just the right time with just the right words, you can impact that person – and your company – in a highly valuable way, say researchers.

Since a compliment’s free to give out and does much for morale and more, it pays to show your team much love. According to a new report from employee engagement firm TINYpulse, employees who receive continuous feedback believe that:

·         Their company is 11% better at taking action on their feedback

·         They feel 11% more valued at work

·         Their work environment is 12% better

·         They are 9% more likely to refer someone to work for their company

The Top 20 Employee Compliments

Recognizing your employees for good work, whether said in person or written on a performance review, starts with having the right words to express your words of appreciation. Here, TINYpulse offers its top 40 compliments that will express your gratitude, appreciation and encouragement:

1.    “Having you on the team makes a huge difference.”

2.    “You always find a way to get it done – and done well.”

3.    “It’s really admirable how you always see projects through from conception to completion.”

4.    “Thank you for always speaking up in team meetings and providing a unique perspective.”

5.    “Your efforts at strengthening our culture have not gone unnoticed.”

6.    “Fantastic work!”

7.    “Even when the going gets tough, you continue to have the best attitude.”

8.    “It’s amazing how you always help new employees get up to speed.”

9.    “Wow! Just when I thought your work couldn’t get any better!”

10. “Your work ethic speaks for itself.”

11. “Thanks for always being willing to lend a hand.”

12. “The pride you take in your work is truly inspiring.”

13. “You’re so great to work with.”

14. “I am continually impressed by the results you produce!”

15. “Thank you for being so flexible.”

16. “It’s incredible how thorough your work is.”

17. “Your work ethic is out of this world!”

18. “You have an extremely healthy perspective.”

19. “You’re one of the most reliable employees I’ve ever had.”

20. “Thank you for setting a great example for your coworkers.”

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Study: What hiring managers want most from resumes, interviews

Every HR pro has a different idea of what constitutes the perfect candidate. 

But according to a Netquote survey of 800 professionals in charge of hiring, there are quite a few common things catching pros’ eyes that are guaranteed to get applicants noticed — in both good ways and bad ways.

Do your preferences match up with everyone else’s?

Keep it simple

It all starts with the resume.

Those surveyed said their opinion of an applicant starts forming the second they look at the resume. The quickest way a candidate can turn off a hiring manager? Including a headshot with their resume.

According to the survey, 42% of HR pros view a resume in a negative light if the applicant has a photo attached to it.

When it comes to the physical appearance of the resume, hiring managers are split on whether they’d prefer a more creative design, or a strictly professional one: 36% don’t want a nontraditional resume, 35% appreciate them and 29% have no preference.

As far as length goes, the more concise, the better. Fifty-one percent consider three pages to be too many (and nearly one-quarter said two pages was too much).

Problem solvers wanted

In the actual interview, the survey revealed hiring managers are focused on candidates who have strong problem-solving skills.

Here’s the top five questions interviewers put the most stock in:

  • Tell me about a time you managed a conflict. (69%)
  • Tell me about a time you learned from a mistake. (68%)
  • Why did you leave your last job? (65%)
  • What are your biggest strengths? (64%)
  • What type of learner are you? (56%)

And the strengths hiring managers are most interested in?

  • problem-solving (42%)
  • communication (32%)
  • time management (30%)
  • honesty (21%), and
  • determination (20%).

But if a candidate says the wrong thing, it can be game over. Here are the most hated buzzwords:

  • “stuff” or “things” (57%)
  • “like” (51%)
  • “low-hanging fruit” (39%)
  • “game-changer” (18%), and
  • “synergy” (18%).



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Google’s #MeToo Moment: HR Impact Will Be Felt Far Beyond Silicon Valley

Though it’s been a year since the #MeToo movement first began, companies are still experiencing the fallout. And not even tech giant Google is immune.

On the morning of November 1, employees left their desks and filed out of Google’s Singapore office. They were the first of thousands of “Googlers” and Google contract workers that walked off the job to protest a company culture that has allowed a “history of harassment, discrimination, and protecting abusers.”

The organizers of the coordinated action published demands for change at Google. Those demands include:

  • Changes to Google’s process for handling employee complaints, especially harassment and sexual misconduct complaints
  • publication of a comprehensive sexual harassment report
  • pay equity and visibility into pay and promotion, including “transparent data on the gender, race and ethnicity compensation gap,” and
  • clear, uniform and globally inclusive processes for all employees and contract workers to report sexual misconduct safely and anonymously.

Harassment still a major issue

The protest was sparked by news reports that Google paid one of its top executives $90 million in exit payouts after an investigation found that he coerced a fellow Google employee into performing a sexual act. But the larger context is the widespread anger about recent revelations of ongoing sexual harassment and racial discrimination in the tech industry and about similarly lucrative deals for other men who have left companies amid allegations of sexual misconduct.

That anger stoked the #MeToo movement which continues to shine a spotlight on sexual harassment in the workplace, as highlighted by EEOC statistics. Those stats show a large spike in harassment claims and lawsuits over the 12 months following the launch of the movement, as well as more harassment rulings and settlements that favor employees.

If the protesters achieve their goals at Google, their demands might well provide a blueprint for changes to harassment policies, reporting procedures, and transparency at companies of all sizes in every industry.

Because of Google’s size and the global ubiquity of its brand and products, the company’s response to the walkout protests are likely to create ripples that accelerate changes to EEOC guidance and force HR departments everywhere to update their policies and procedures immediately.


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Dealing with worker absences on election day

Head’s up! Election Day is coming, and depending on which state your facility is located, you may be required to give workers notice about their voting rights and provide paid or unpaid time off to vote.

California and New York are among the states where employers must post notices in the workplace before Election Day to let employees know about their right to take time off to vote, according to the Society for Human Resource Management (SHRM).

Twenty-one states and Washington D.C. require employers to give employees paid time off to vote. Another six states require employers to provide unpaid time off to vote. The rest of the states don’t address paid or unpaid leave for voting. (Oregon and Washington no longer have voting leave laws because they are “vote-by-mail” states.)

Best practices

Most states make it illegal for employers to discipline or fire an employee who takes time off to vote.

Even in states where there is no voting leave law, it’s good practice to allow employees to take up to two hours off to vote if there isn’t enough time for them to do so during working hours, Robert Nobile, an attorney with Seyfarth Shaw in New York City tells SHRM.

The two hours could be from when the polls open or the last hours before they close. Example: If polls are open from 7 a.m. to 8 p.m. in your state, make sure the employee has time off either from 7-9 a.m. or 6-8 p.m.

Need to check the voting laws in your state? Here’s information from the League of Women Voters.

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Motivating millennials: What benefits are must-haves?

A war for talent is being waged in this tight job market.

Companies are fighting hard to recruit, hire and retain millennials, who now make up more than one-third of the workforce.

Changing the way you recruit

Since 89% prioritize benefits over pay raises, “companies are having to change the way they recruit and offer new benefits,” said Paris Wallace, CEO, Ovia Health. She says employers should bet on these three benefits:

  • Learning and development programs: Companies need to put in place the framework to help employees grow internally, said Wallace. These opportunities could include more formalized classes or tasking them with managing projects or leading meetings.
  • Family benefits: “Having comprehensive family benefits – fertility, infertility, pregnancy, maternity and parenting benefits – can make one company stand out from the rest,” said Wallace.
  • Lifestyle support: With a quarter of millennials in debt, this group is looking for student loan repayment programs, financial assistance and fitness discounts. “Flexible scheduling can also be a make-or-break benefit for young millennials,” adds Wallace.

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Proactive policy changes HR should make: 3 key rulings

HR pros know it better than anyone: Courts are always issuing conflicting employment law opinions, which can make compliance an uphill battle. 

But three recent court rulings addressing major HR issues have bigger implications than just another differing opinion thrown into the mix.

Changes to consider now

These court decisions could influence the employment law landscape in the near future, according to Louis Lessig, partner at Brown & Connery LLP.

Lessig suggests employers consider policy changes now to stay safe and ward off potential legal trouble.

Here’s a breakdown of the three rulings and how employers might proactively respond to them:

1. In Minarsky v. Susquehanna County, the Third Circuit ruled a worker’s failure to report sexual harassment didn’t let the employer off the hook.
Sheri Minarsky claimed her supervisor made sexual advances toward her for years. She never reported it because she feared losing her job. The company argued since she never reported the harassment, they couldn’t have known to stop it.

But two other workers previously reported the supervisor for harassment, and the company had only given him verbal warnings.

The court ruled Minarsky’s fears preventing her from reporting the behavior were valid. Since the company already knew about the supervisor’s history and hadn’t done much, it wasn’t unreasonable for Minarsky to be hesitant to complain about the behavior, the court said.

Lessig says this is a crucial ruling, because it shows ignorace of harassment isn’t a solid defense for employers anymore. To avoid surprise harassment lawsuits, Lessig suggests companies implement civility and bystander intervention training.

2. In Stephens v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit said discriminating against a worker because they’re transgender is sex discrimination.

When Aimee Stephens told her employer she was transitioning to a woman, Stephens was fired.

Since discrimination against LGBTQ employees isn’t strictly prohibited by the Civil Rights Act, other circuit courts have ruled cases like this aren’t sex discrimination.

But, the Sixth Circuit said it’s “impossible to fire a transgender person without it being motivated, at least in part, by the employee’s sex.”

To stay safe, Lessig suggests remaining vigilant for any harassment or discrimination against LGBTQ workers, and to draft policies offering them protections.

3. In Noffsinger v. SSC Niantic Operating Company, a Connecticut district court said federal law doesn’t always allow employers to reject applicants using medical marijuana.

Katelin Noffsinger was offered a job with Niantic, conditional on passing a drug test. She disclosed she took legal medical marijuana to treat her PTSD.

But upon failing the drug test, the job offer was rescinded.

The company cited federal law and its zero-tolerance drug policy, but the court said that wasn’t enough to outright reject Noffsinger, who was using legal medical marijuana outside of the workplace.

Lessig says medical marijuana is a very complicated legal issue. But, he advises employers not to have zero-tolerance drug policies and to always take state laws into consideration.

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Get remote workers back in the office: 4 ways to convince them

With the productivity and morale benefits of working from home, more companies are offering some kind of telecommuting options for their employees. 

But while technology makes remote working just as effective as coming into the office, a lot of employers would prefer seeing staff at their desks more than not.

Replicating home benefits

Instead of altering telecommuting policies or taking them away completely, a better strategy is convincing employees to willingly come into work.

And how do you do that?

Inc.com contributor Geoffrey James has a few ideas that’ll entice workers by replicating in the office the benefits they enjoy at home.

1. Deal with the problematic employees. One of the major benefits of working from home is not having to deal with the bullies and whiny co-workers of the office. Employees would be much more likely to come into the office if they only had to interact with their pleasant colleagues. Identify the unpopular co-workers and have a talk with them about their behavior.

2. Keep meetings short. Telecommuting employees love avoiding long, boring meetings. At home, they can keep tabs on what’s going on while still working on something else. To entice people into the office, keep meetings as brief and infrequent as possible. Always have an agenda and avoid PowerPoint at all costs!

3. Give workers flex time. While working from home, employees can easily run an errand or go to a mid-day doctor’s appointment. Imitate this in the office by encouraging workers to run out for a bit if they have to. Flex time at work will give staff the same sense of freedom they enjoy at home.

4. Make the office comfortable and efficient. A lot of employees despise open office plans, since there’s nowhere to find some quiet or escape annoying co-workers. Give employees a designated private area for individual work, and the open office can be for collaboration.

It’s a good idea to get some good desk chairs for everyone, too. The couch at home might not have so much appeal if employees had a comfortable new chair to sit in at work. Another great, easy perk to offer that will entice people to come into work: Free, delicious coffee.

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