We’re now in the home stretch of my tips for harassment policies and complaint procedures. (It’s not exactly like America Pharoah’s “home stretch” run for the Triple Crown – but close!)
“Pregnancy” as a Protected Characteristic
My first tip creates a very cathartic experience because it forces me to admit that nobody’s perfect, including me. In my case, the “no-harm/no-foul” rule saved me. But, there was once a client who wasn’t as lucky.
The client had an EEOC pregnancy discrimination charge and, lo and behold, the long list of protected characteristics in the company’s harassment policy did not include pregnancy. How embarrassing!
Fortunately for me, this client’s policy was not one that was adopted from my model policy at the time. Had that been the case, this omission would have been my fault.
Go back and look at your policy. Does the list of potential characteristics include “pregnancy”? If not, it’s a common mistake that I’ve seen repeated many times. It happens because when the protected characteristics from Title VII are meticulously copied, “pregnancy” is not there!! Pregnancy discrimination did not become the law of the land until 1978.
Oops!
Strict Confidentiality Requirements
In my more recent review of client handbooks, I’m happy to report that the problem with employers promising “strict confidentiality” for those who make complaints has been all but eliminated. Instead, the magic words now read: “complaints will be kept confidential to the extent feasible and consistent with the Company’s obligation to investigate the complaint and, if appropriate, take remedial action.”
Today’s “hot topic” problem that I am seeing is when the policy requires that “the complaining employee must keep his/her complaint in strict confidence.”
Employers put this in their policies to protect the integrity of the investigation, to avoid witnesses “getting their stories straight,” and to avoid situations where those involved may “destroy evidence” if they learn about the complaint.
The problem is that a broad strict confidentiality requirement offends both the EEOC and the NLRB. The EEOC takes the position that “strict confidentiality” deters a complaining employee from filing an EEOC charge. The NLRB takes the position that, among other things, “strict confidentiality” interferes with protected concerted activity by, for example, preventing victims from talking to others to find out if they were victims of the same treatment.
My practical advice to employers who have “strict confidentiality” in their complaint procedure is to take it out. But, in appropriate circumstances, when the fear of destroying the integrity of the investigation is an actual risk and not a hypothetical one, “ask” but don’t “require” that the complaining employee not discuss the complaint with potential witnesses.
The “Surgeon General’s Warning”
I’ve saved the best for last.
As I’ve written before, we submitted SHRM’s brief to the United States Supreme Court in Faragher v. City of Boca Raton. Our argument was the basis for the Supreme Court’s creation of the “Faragher affirmative defense.”
Being so proud of our win in the Supreme Court, I tried to think of ways that employees might try to get around the affirmative defense in situations in which they did not complain. So, one day, while on my daily run, I came up with the “Surgeon General’s Warning.” My goal was to have something in the complaint procedure that I could use at a deposition when the employee said, “I didn’t know I had to complain.” Here’s what I created:
IMPORTANT NOTICE TO ALL EMPLOYEES: Employees who have experienced conduct they believe is contrary to this policy have an obligation to take advantage of this complaint procedure. An employee’s failure to fulfill this obligation could affect his or her rights in pursuing legal action. Also, please note, federal, state and local discrimination laws establish specific time frames for initiating a legal proceeding pursuant to those laws. |
Today, over 17 years after the Faragher decision, this magic box has been copied far and wide by employers and their legal counsel. Nothing makes me happier than to see that someone else has copied my idea. I’ll also be happy to know that some of you will use it in the future.
_______________________________
The next time we “talk” will be live and in person on June 29 at 2:00 p.m. at my Mega Session at the SHRM Annual Conference & Exposition in Las Vegas. My topic, of course, will be “Employee Handbooks: Every Word Counts.” What else would you expect?
Allan H. Weitzman is a Florida Supreme Court Certified Circuit Court Mediator and Florida Bar Board Certified Labor and Employment Attorney – a combination of specialized certifications that are held by very few others. He is the Founder of Weitzman Arbitration & Mediation Services LLC.
Allan retired from the practice of law on October 31, 2017. Prior to his retirement, all of those 44+ years were at the Proskauer law firm, where Allan was first a summer associate, then an associate and ultimately a partner in Proskauer’ s Labor & Employment Law Department, where he also served as head of the labor and employment team in Proskauer’ s Boca Raton office for 23 years after his 21 years in Proskauer’ s New York Office. He also was co-head of the Disability, Accommodations & Leave Management Group, co-head of the Policies, Handbooks & Training Group and co-head of the Non-Compete and Trade Secrets Practice Group.
During his career, Allan’s practice was multifaceted. Much of the time he was either litigating in state or federal court at the trial and appellate levels. He also appeared before administrative agencies responsible for the enforcement of the numerous antidiscrimination laws and before the National Labor Relations Board. His experience includes negotiating collective bargaining agreements and arbitrating contract disputes. In addition, Allan provided valuable day-to-day and crisis advice to clients in a wide range of businesses and industries, including retailers, banks, office supply companies, insurance, securities, health care, investigators, lodging and gaming, restaurants, television networks, high end fashion design, maritime, charitable organizations, public utilities, sports and entertainment, beer distributors, not-for-profits, importers, manufacturing facilities, staffing companies, construction, aerospace, transportation, higher education, museums, technology, country clubs and airlines. On any given day, the scope of his practice included personnel policy planning, sexual harassment and avoiding litigation when terminating employees.
Corporations also called upon Allan when their former employees engaged in conduct that violated their non-compete agreements. In that regard, Allan took a case all the way to the Supreme Court of Florida and successfully argued that a successor employer can enforce a non-compete agreement signed with a former employer, even when the agreement does not contain a successors and assigns clause and where the employees have not consented to its assignment (Corporate Express Office Products, Inc. v. Phillips, 2003 WL 1883697 (Fla. April 17, 2003)).
On behalf of the Society for Human Resource Management (“SHRM”), Allan and his partner, Paul Salvatore, submitted the amicus brief to the U.S. Supreme Court in Faragher v. City of Boca Raton. The employer's “affirmative defense” that was adopted by the Supreme Court in Faragher was based on the argument made by Allan and Paul that employees who bypass an employer's internal complaint procedure should not benefit from a strict liability standard. Allan also co-authored SHRM's amicus brief in Chapman v. AI Transport, in which he successfully argued that an employer's subjective impressions could be used as valid criteria in its employment decisions. In 2004, Allan co-authored another Supreme Court amicus brief on behalf of SHRM. This time his arguments in the Suders case persuaded the Court to conclude that a constructive discharge was not necessarily a tangible employment action that would deprive an employer of the availability of the Faragher affirmative defense.
Allan was named three times by Best Lawyers as “Lawyer of the Year” in Labor Law - Management, Fort Lauderdale (2017), Employment Law - Management, Fort Lauderdale (2016) and Employment Law - Management, Miami (2013).
Allan has earned a first tier Chambers ranking for his outstanding employment law work every year since 2007, naming him “first-class” and a “notable practitioner” who is an “excellent advocate with strong ethics and an unrivalled understanding of business.” He was also described as “amazingly bright” and held out as “bringing the best of both worlds: legal acumen and superb business judgments.” “He gets to the point in the most efficient and effective manner – he has the highest professional standards.”
- 0
- 229 views
Add new comment