Author: Brett Holubeck

How to Respond to an EEOC Charge

Published by Brett Holubeck on February 21, 2019

What is the EEOC?

The Equal Employment Opportunity Commission (EEOC) is the government agency that enforces several laws relating to discrimination including those that protect employees from discrimination based on their race, color, religion, sex, national origin, age (40 and older), disability, and genetic information. It also protects employees from retaliation because they filed an EEOC charge, complained of discrimination, or testified or participated in an investigation or lawsuit involving an employment discrimination charge. Under the Federal law employers with 15 or more employees must not discriminate against individuals based on any of the above characteristics. Many states have employee thresholds that are less than 15 employees.

If a company has an EEOC charge filed against them, then it needs to be prepared to respond. Obviously, the best practice is to avoid circumstances that could lead to a discrimination lawsuit.

Creating a Record

The first goal of any employer should be to avoid an EEOC charge. It is not possible to ensure that there is no risk of lawsuit when you fire or discipline an employee. Adverse employment decisions can be gray.

However, there are a number of things that can be done to reduce the risk of a lawsuit. Here is an earlier post that discusses many of the items that should be considered. To summarize, any time you discipline an employee (and ultimately terminate them) you need to consider the following to reduce the chance of an employee filing a discrimination charge against a company:

Was the employee aware of the company policy that they violated?
How many times has the employee violated the policy and other policies?
Did the company apply the progressive discipline policy?
Has the company documented the violation and prior violations? Was the corrective action documented?
What level of discipline does the employer’s policy require?
What discipline did other employees that have violated the policy receive?
Is there any reason to reduce the punishment? Are there mitigating circumstances?

Whenever a company disciplines an employee it needs to create a record of the discipline. Every company should have a discipline form that tells employees what rule they violated and any corrective action that will be taken. Employers should have employees sign and date the form. If they refuse to sign, then the HR manager or a supervisor can write on the form that “the employee refuses to sign,” and date and sign next to this statement. In this way, every employer can control the record for any actions that it took in response to employee behavior.

Unfortunately, this step will only prevent or limit claims related to actions that the company formally took. It does nothing for discrimination claims that are based on the actions of a supervisor or boss that are acting unprofessionally by joining in or encouraging misbehavior or the result of the actions of fellow employees. These situations are especially common in cases of sexual harassment. You can review how to limit sexual harassment in one of my prior posts.

When You Receive the EEOC Charge

First you need to review the charge to determine what is alleged. You should review the information carefully to determine:

What law was violated?
Who is alleged to have been involved?
When did the alleged action occur? (Note: some actions may be barred by the statute of limitations.)
Are any documents mentioned?
Who, if anyone, committed the alleged unlawful conduct?
Does the company have any record of the unlawful conduct?
If so, did the company take any action to resolve the conduct?

Preserve any necessary records that are related to the allegations. Companies should also quickly alert the team that will be responsible for responding to the allegations including outside counsel, inside counsel, HR, and/or management.

Start Your Investigation and Response

Investigations need to take place quickly so that you can respond to the EEOC in a timely manner. The EEOC will also start its investigation after it issues the charge. The EEOC will generally begin the investigation by requesting a number of documents from the company including the employee’s personnel file, any relevant rules, and the employee handbook. The EEOC will also want to speak with witnesses and possibly come onsite. All of these witnesses, management and non-management, should be prepared to speak with the EEOC. Attorneys for the company may need to meet with these individuals to ensure they are ready. The EEOC will also request that the employer provide a written statement with its position on the allegations.

The EEOC has done a great job outlining how to draft a statement of position:

• Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of events.
• Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
• Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
• Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
• Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
• Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
• Be specific about date(s), action(s) and location(s) applicable to this case.
• Provide internal investigations of the alleged incidents or grievance hearing reports.
• Inform EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.

The statement of position is an important step in responding to the allegations. A good statement of position can make it easier to settle a case or challenge the allegations after the EEOC issues a determination.

Consider Whether to Use Mediation

Companies can settle claims that the EEOC investigates at many stages in the process and can do it before the EEOC gets involved if the claim is settled before the individual files an EEOC charge. In fact, the EEOC has its own mediation/settlement process because it strongly encourages settlement.

The EEOC has a great explanation of why companies should consider mediation:

• It is free.
• It is confidential. Information disclosed in mediation will not be shared with anyone, including EEOC investigators and lawyers, and will not be used against you by EEOC.
• It can save you time and money. Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. If successful, the charge is resolved and you avoid potentially lengthy, uncertain and expensive litigation.
• It allows you to design your own solution. You and the employee determine how to resolve the issue in a mutually acceptable way.

Mediation is often a cheaper option for an employer, but companies must be prepared to accept the consequences of settlement/mediation.

Conclusion

No one wants to face an EEOC charge of discrimination from an employee. These charges often go public and lead to headlines like this: “Absolut Care Denies Pregnant Workers Leave”. The best approach for any company is to have a policy to handle complaints of discrimination and unfair treatment, document any adverse employment action and corrective actions, and train supervisors and staff on issues relating to discrimination.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Office Romance: Love, Lust, & Lawsuits

Published by Brett Holubeck on February 8, 2019

Picture of a heart to demonstrate some of the issues surrounding office romance. — Photo by Clem Onojeghuo on Unsplash

February has arrived and yet again flowers and candy hearts are flying off the shelves and many men and women are hoping/planning/expecting to ask out the man/woman of their dreams. Seems simple enough, right? Riddle me this, though. What happens when your dream man/woman works with you? Maybe you share rides together. Maybe they sit in the cubicle next to yours. What if they are your boss? Or maybe you are Jim and Pam– best friends at work that end up being soulmates.

It is no surprise that many colleagues end up dating. One survey by CareerBuilder found that 38% of people have dated a colleague at some point and 31% of people that dated a colleague ended up marrying them. If you have a business or manage one, then office romance is something that you cannot ignore. It will happen in your workplace. Businesses that do not have a plan to respond to office romance can end up facing sexual harassment claims, unproductive employees, tension between employees, and employees quitting to get away from an ex.

Companies Need a Policy on Office Romance

All workplaces need to have a policy on relationships in the workplace. Almost every workplace will have some office romances. If you have a big workplace, and especially if that workplace is in a small town, then it could be the case that you will have married individuals that have some kind of authority over their spouse. Moreover, there may be situations where a supervisor and a subordinate wish to date. These issues can be very tricky, and businesses need a tailored response to these and other complex issues.

Any policy on office romance should forbid supervisors from dating their subordinates. Too often a subordinate in this situation is not freely choosing to have the relationship or feels that they will be retaliated against if they refuse the advance of a supervisor. If an employee and a supervisor do date, then other employees can also feel that the supervisor treats their significant other better than other employees. If the relationship ends, then the supervisor may retaliate against the employee that they dated, which can lead to sexual harassment claims against the company if it is not properly addressed. Companies have the option to transfer employees to other parts of the facility where the supervisor will not be in charge of the employee should the company choose to allow a supervisor and employee to date. However, it is generally best to prohibit supervisors from dating their direct subordinates.

Ensure that the Company’s Sexual Harassment Policy is Up-to-Date

You can review my recommendations to combat sexual harassment in full here. Let’s quickly review the basics of what you need to know about sexual harassment.

Sexual harassment can include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Isolated incidents that are not very serious, normal advances or flirting (like compliments), and some teasing are not harassment provided that these actions are not so frequent or severe to become a hostile work environment. Adverse employment actions (firing, discipline) that a supervisor takes because an employee refused their advances can result in a claim against the company. Most importantly, no employee should be like Bulldog in Frasier. You cannot allow an employee, no matter how valuable they seem to be to the company, to sexually harass a fellow employee. They will eventually become a liability.

You need a policy that addresses how employees can report sexual harassment, defines what sexual harassment is, and you need to train your managers and staff to be aware of and know how to address sexual harassment issues. In every workplace there is someone that will cross the line. All businesses must be vigilant in preventing and addressing sexual harassment, however, businesses that have a particular reputation of having lots of sexual banter and horseplay must be even more cautious and aware. A sexual harassment policy is only good if a company enforces it and makes sure that employees feel comfortable to report harassment.

Let’s take a look at the restaurant industry as a case study.

The Food Service Industry and Sexual Harassment

The food service and hospitality sector had more sexual harassment claims than any other sector from 2005 to 2015 with 14% of all 41,250 sexual harassment claims filed against businesses in that sector. One survey reported that 40% of women in the fast food industry experience sexual harassment. Why is sexual harassment so pervasive in this industry?

Basically, the problem in the restaurant industry is that the businesses tolerate this behavior. Some of the accusations follow the familiar pattern of a person in a place of authority that abuses their position to create a culture of fear where employees feel that they must choose between their jobs and speaking up. The harassment also often occurs through “jokes.” For example, a female employee may bend over to grab a pot, and someone makes a “joke.” If you want to hear a firsthand perspective of how bad it can be then you can read about it here.

The key thing for any business is to train its employees and managers. Have a policy that encourages employees to speak up when they witness something (bystander training). Most of all businesses need to act when something happens and make it clear to employees that sexual harassment will not be tolerated.

When Office Romance Becomes Harassment

What is the difference between flirting, jokes, and other romantic gestures and harassment? Harassment is an unwelcome advance made on another party. Here are some things to consider if you are thinking about dating a coworker.

Become friends with any coworker that you plan to ask out (or at least be acquaintances).

No one wants to be asked out by someone that they do not know. All coworkers should get to know someone before asking them out.

You only have one chance to ask someone out.

Do not ask a coworker out repeatedly. If they say no, if they say that they are busy that day, or are not available, then that is it. If they really want to go out with you, then they will come back and let you know. Real life is not like 50 first dates.

If they reject you, then you need to be professional and move on

This means if a coworker is rejected or if employees date and the relationship goes south, then they must resolve the situation. When coworkers are at work, they need to be professional and treat the other person the same way that they would treat any other coworker.

Conclusion

Office romance is a touchy subject especially after the revelations of the #metoo movement. All companies need to be aware of the problems that can occur when coworkers date, and they also need to be aware of and realize the potential for abuse of power in romantic situations (realized or unrealized). In today’s workplace culture, there is a thin line between office romance and sexual harassment.

P.S. Including suggestive romantic marketing materials around your workplace is probably not a good idea. Can’t you imagine a pile of these napkins on a coworker’s desk with suggestive names and numbers? Or (stalker alert) all from the same person?

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Pets and the Workplace: Pets are Changing Work

Published by Brett Holubeck on January 31, 2019

Picture of a dog in sun glasses to tie into the theme of pets and the workplace — Photo by alan King on Unsplash

Pets are an integral part of people’s lives. Sixty-eight percent of US households, a total of 85 million families, own a pet which is up from 56% of households in 1988. In 2017, Americans spent $69.5 billion on their pets.

While older generations loved their pets, millennials seem to love their pets more than any previous generation and have made them an integral part of their lives. More millennials own pets than have children. In 2016, 48% of Millennial women (ages 20 to 35 at the time) were moms compared to 57% of women the same age in 2000. Approximately 73% of millennials currently own a pet. There are Twitter accounts with millions of followers about animals (Dog Feelings and Dog Rates), entire Reddit groups about pets (Reddit Dogs) and, of course, innumerable pet photos on Facebook. There is even a movie (and a forthcoming sequel) about what pets do when their owners are not home, which I am very excited to see with my kids.

People with Pets are Healthier

Pets do a lot of good for the people in their lives. Researchers at the State University of New York at Buffalo discovered that in people already taking medication for hypertension, their blood pressure response to stress was cut by half if they owned a cat or dog.” Pets help people to socialize. A person that is walking a dog is a lot more approachable than a person merely walking down the street (except maybe if your dog is similar to mine- five whole pounds of fury). Pet owners also have a lower rate of obesity than non-pet owners. This comes as no surprise to me because I have to let my dog out practically every time I turn around.

Bringing Pets to Work

According to a 2016 report from the Society for Human Resource Management approximately 7 percent of offices in the US allow pets at work. Among the companies that allow pets are Amazon, Bissell, and Zoosk. 6,000 pets join their owners every day at the Amazon headquarters in Seattle. There is also a bring your dog to work day that some companies celebrate.

While this is not something that can be accommodated at every job (think about those that work in the food industry or elsewhere), there are workplaces where it can work, and companies should consider it. Pets and the workplace can work well together. Anyone that is in an office setting could potentially bring their pets to work with them.

As stated above, there are some health benefits from having pets that employees may also experience if they bring those pets to work including lower amounts of stress. Also, this is a perk that the employees that have pets really love. They get to spend more time with their dogs and cats and do not need to worry about what their pets are doing at home all day. As long as the pets are not inhibiting employees from doing their jobs (like this cat), making a mess, or causing allergic reactions, then this is something that may be possible in a lot of offices and can help attract talent. Especially when we know people are looking for jobs that accommodate their lifestyles and perception of work-life balance, allowing them to bring someone they love (their pet) to work may be something they really enjoy and value.

If any of these issues become a concern, then the best option is to address them with the employees. Obviously, if someone is severely allergic to a cat or dog, then you will need to either rescind the policy (if the workspace is small) or limit the policy to certain parts of the building. If an animal is not well-behaved, then the company will need to address it with the owner and should consider banning the animal from the premises.

Also, you should place some limits on the kinds of pets that are allowed on the property. I would limit the policy to dogs and cats (you may be required to allow miniature horses ), also maybe considering the limitation of breeds given aggressive nature similar to what breeds house insurance will not cover on homes. Lastly, no one needs to bring their emotional support alligator to work.

Service Animals Must be Allowed on the Property

One quick side note. All businesses that are open to the public must generally allow people to bring their service animals into the facility. The ADA National Network provides a great explanation of what a service animal is:

A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button.

Titles II and III of the ADA permit the owners of these service animals to be present anywhere members of the public, program participants, customers, or clients are allowed.

Jacquie Brennan and Vinh Nguyen at the ADA National Network write that

When a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. Only two questions may be asked:
1. Is the animal required because of a disability?
2. What work or task has the animal been trained to perform?

Allowing an employee to bring their service animal to work may be a reasonable accommodation. It will depend on the job that the employee does to determine whether allowing a person to bring an animal is a suitable accommodation.

Pet Insurance and Companies

One of the incentives that some companies have begun to offer their employees is pet insurance. Currently, only 1-2 percent of pet owners have insurance for their pets.

As I said before, people love their pets and 68% of US households have a pet. Because companies are always in competition to attract the best talent, some companies have begun offering pet insurance. It is something that all companies should consider. Currently, about 1 in 3 Fortune 500 companies offer pet insurance.

Why are companies offering this benefit? Owning a pet can be expensive, especially when these animals get sick or injured and they need to go to the vet. On average, a dog owner will spend more $700 on veterinary bills per year and a cat owner will spend a little over $300. Pet insurance is a perk that the company can give to show employees that they care., and it is something that could be beneficial to most of a company’s workforce.

Pet Leave and the Workplace

Pets get sick. Many companies do not recognize the need to care for a pet as a sufficient reason for that person to stay home from work. However, other companies have begun to see the importance of this to their employees and have started to allow employees to call off sick to care for their sick pet. Some companies allocate a specific number of hours for employees to use to care for their pets. While others have allowed employees to use their sick or vacation time to take care of a pet. Truthfully, regardless of your policy, it is probably a good idea to allow people to take off time to care for their pets.

Consider a pet owner whose dog has to get emergency surgery. If you do not allow that employee to take off work, then they are going to be upset with the company. If they do come to work, they will not be focused on their job because the will be too worried about their pet. Unless it is really necessary for them to be at work, some time off can make the employee feel appreciated by the company and motivate them to work harder when they return.

New Pets and Pawternity Leave

Some workplaces are offering a new benefit for employees: the chance to bond with a new puppy. About 5% of pet owners have been offered paid leave from their job to adjust to owning a pet. Other employers allow employees to take off several days without pay while they adjust to owning a dog.

Again, while this is not right for every business, it can be something that is useful to attract millennials because so many of them have pets. It can help create a culture where the employees feel like the employer cares (and hopefully actually does care) about employees.

Pet Bereavement

Unfortunately, pets die. The death of a pet can even be as hurtful as the loss of a human significant other. It is an even more tragic experience when the pet owners have young children that also experience the loss of their pets. Many parents do not send their children to school the day or a couple days after they lose a pet when those children are young. The kids are devastated. The parents are too.

Again, allowing employees that need time to adjust to the loss of a pet can be incredibly helpful. This is a small benefit that can easily be included as part of the reasons that an employee may use sick leave, vacation time, or paid time off. Doing so will make the employee feel valued and will help them to be motivated when they return.

Conclusion

Pets and the workplace may seem like a combination that does not mix. However, as companies continue to compete for talent, it is a benefit that all companies need to consider. Most of the people in your office probably have a pet. Some of them will even have more than one pet. Providing benefits that help employees with pets is a way to improve morale and show employees that a company cares and recognizes what is important to them both inside and outside of the workplace.

The information provided is my own and does not reflect the opinion of my firm or anyone else.