What do you do when an employee refuses to complain?

Do you know what to do if you believe an employee was sexually harassed, but refuses to provide any details or other information? Do you have an obligation to investigate as if the employee had lodged a formal, detailed complaint? Crockett v. Mission Hospital (4th Cir. 5/30/13) provides some insight.

Stephanie Crockett worked at Mission Hospital as a radiologic technologist. Her supervisor (albeit one without the authority to hire or fire) was Harry Kemp. Following several disciplinary notices and a final written warning, Crockett asked if she could speak to Kemp. He agreed to a private conversation. Kemp insisted they meet in an unused office, expressing that he thought his office had been bugged. Then, behind closed doors, Kemp requested that Crockett remove her clothes before they spoke to prove that she wasn’t wearing a wire. Crockett complied, albeit begrudgingly and through tears. Following their discussion, Kemp requested that she not tell anyone what happened.

While Crockett on a leave of absence, Kemp went to HR and accused Crockett of “flashing” him in an attempt to persuade him not to report new disciplinary violations. Crockett denied to HR that she had flashed Kemp, and further told them that he had done something “horrific” to her and was trying to cover it up. She refused to elaborate, but later told HR that the incident involved sexual advances by Kemp. She again, however, refused to provide any details. HR then interviewed at least 5 co-workers, each of whom denied seeing or hearing anything inappropriate. The hospital later terminated Crockett for admitting to having recorded conversation between Kemp and her, and conversations about patient information, in violation of hospital policy.

The appellate court affirmed the district court’s dismissal of Crockett’s sexual harassment claim, concluding that the hospital “exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and that Crockett “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

McCarthy, Jones, and Ensley immediately began an intensive investigation on February 25, 2010, after Crockett accused Kemp of “horrific” behavior toward her, despite the fact that she refused to provide any further details or information. They interviewed numerous employees and supervisors in Crockett’s department, but were handicapped by Crockett’s refusal to cooperate and give Mission some clue as to her complaint. Since Crockett had refused to provide any information, their attempts to investigate her claim were unsuccessful….

The uncontradicted evidence establishes that Mission met with Crockett on numerous occasions in an effort to promptly correct the situation, counseled her in the procedure for filing a formal complaint, and provided her with a copy of the sexual harassment policy, despite Crockett’s unwillingness to cooperate with the investigation.

Harassment is harassment, regardless of whether the victim complains or management learns of the harassment allegations another way. A company’s obligations to investigate, and, if necessary, take corrective action does not change merely because the victim won’t cooperate.

For more information on how to appropriately and effectively respond to a harassment complaint, I suggest reading How NOT to respond to a harassment complaint. I also cover the topic in-depth in Chapter 6 of The Employer Bill of Rights.

NLRB judge strikes down Red Cross employee confidentiality policy

A couple of months ago, I suggested that there was hope for a friendship between the NLRB and me, following the Board’s pronouncement that most at-will employment disclaimers would not violate the NLRA’s protected concerted activity laws. I reached this conclusion because of the Board’s statement concerning reading employment policies “in context” to determine whether potentially violative phrases in employment policies can conceivably be read to restrict Section 7 activity.

If the Board is supposed to read employment policies “in context,” then can you please explain the recent ruling by an NLRB Administrative Law Judge in American Red Cross Blood Services, Western Lake Erie Region (6/5/13) [pdf]?

In American Red Cross, the ALJ examined the following confidentiality policy:

I acknowledge that I may, in the course of my employment with Red Cross (“Employment”), have access to or create (alone or with others) confidential and/or proprietary information and intellectual property that is of value to Red Cross. I understand that this makes my position one of trust and confidence. I understand Red Cross’ need to limit disclosure and use of confidential and/or proprietary information and intellectual property…. Therefore, I agree to the following:

Confidential information shall include but not be limited to: … information relating to Red Cross’ … personnel … matters.

The ALJ held that this policy violates Section 8(a)(1) of the NLRA by reasonably chilling employees in the exercise of their section 7 rights:

By defining confidential information as including information regarding “personnel” and “employees” the [policy] would be reasonably understood by employees to prohibit the disclosure of information including wages and terms of conditions of employment to other employees or to nonemployees, such as union representatives. It is, of course, clearly established that employees have a Section 7 right to discuss wages and  terms and conditions of employment among themselves and with individuals outside of their employer.… 

The specific employee handbook provision that prohibits the release of confidential employee information without authorization is clearly facially overbroad, … in that such a rule would reasonably be understood by employees to prohibit the disclosure of information regarding wages and terms and conditions of employment to other employees or to union representatives.

I do not agree that employees would reasonably understand that a policy that covers “personnel” matters would prohibit employees from discussing matters of compensations and wages. Indeed, there were no allegations in the case that the Red Cross acted against any employee under this policy. Instead, the ALJ was reviewing the policy in the abstract.

The ALJ also rejected the employer’s argument that a “savings clause” in its handbook rendered an otherwise unlawful policy lawful:

“[T]his Agreement does not deny any rights provided under the National Labor Relations Act to engage in concerted activity, including but not limited to collective bargaining.” As the Charging Party correctly noted in its brief, under Board law, such a disclaimer does not make lawful the content of a provision that unlawfully prohibits Section 7 activity.… The “savings clause” noted above arguably would cancel the unlawfully broad language, but only if employees are knowledgeable enough to know that the Act permits employees to discuss terms and conditions of employment with each other and individuals outside of their employer.

I have two takeaways for employers from this decision.

1. The NLRB continues to scrutinize facially neutral employment policies for violations of employees section 7 rights to engage in protected concerted activity, even in cases in which there is no allegation of any adverse action against any employee under an alleged unlawful policy.
2. Savings clauses and disclaimers might save a policy that the NLRB views as overly broad, but likely only if specifically drafted. Board and non-specific savings clauses will not save the day. Instead, employers should draft savings clauses such that employees can reasonably understand their specific rights that are protected.

WIRTW #277 (the “come on down” edition)

Some of my fondest memories as a child were watching The Price is Right with my Grandmom Annie on the TV in her basement. We’d watch Family Feud, The Price Is Right, and The Match Game, and then she’d make me a grilled cheese sandwich for lunch. Heaven on earth to a 4-year-old.

Harkening back to those childhood days, I always wanted to see The Price is Right live. I fulfilled that dream during the spring break of my 1st year of law school. The experience was surreal. We sat next to a guy wearing a pink, bespangled, “I ♥ Bob Barker” sweatshirt. It was his 250th taping, and he knew the names of all of Bob Barker’s cats and dogs (restraining order not included). We also saw one of the curtains break down as they were about to reveal the prize for one of the pricing games, followed by Bob Barker telling the confused contestant, “When we start rolling tape, I will have already said, ‘And you can win this!’ The first thing the camera will see is your reaction. So, whatever piece of s**t is behind that curtain, you better react like it is the best thing you’ve ever seen.”

I tell this story because earlier this week, The Huffington Post reported that a North Carolina postal worker pleaded guilty to workers’ compensation fraud. The employee had lied about her inability to stand, sit, kneel, squat, climb, bend, reach, grasp, or lift. The smoking gun? An appearance on TPIR on which she spun the big wheel, twice.

Here’s the rest of what I read this week:

Discrimination

• Is Sexual Harassment Permissible If It Is Directed At Both Male and Female Employees? — from Minnesota Employer
• Sexually Harassing Comments - Is There Any Case Where A Single Usage Created A Hostile Work Environment? — from Employment Discrimination Report
• Employee alleges he got the “Office Space,” claims age discrimination — from Eric Meyer’s Employer Handbook Blog
• EEOC guidance may impact hiring practices of regulated industries — from EmployerLINC
• Case of fired Catholic schoolteacher likely isn’t over — from Crain’s Cleveland Business Work Force Blog
• “Fired for being gay” article in NY Times — from Warren & Associates Blog
• Unpaid Worker Not “Employee” Under Title VII, 5th Circuit Decides — from Joe’s HR and Benefits Blog
• We Need the Young to Help Eliminate Age Discrimination in the Workplace — from TLNT
• Are these medical questions illegal, or not? Test your knowledge! — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
• Think Before You Tweet: It’s All Fun and Games Until Someone Gets Fired — from PayScale
• Newsbreak: What You Post on Facebook Can Be Used Against You — from Lawyers.com
• Social Media Password Protection and Privacy — The Patchwork of State Laws and How It Affects Employers — from Workplace Privacy Counsel
• Undeliverable: E-mail blocks retaliation claim — from Technology for HR

HR & Employee Relations

• The Biggest Interview Mistakes HR Experts See — from Lifehacker
• Secrets of Super Negotiators – Don’t Use Round Numbers — from Negotiation Law Blog
• Backing a new employee in restrictive covenant proceedings can be costly — from Employment Law Worldview
• What to Do When an Employee Cries at Work — from Harvard Business Review
• Employers in the Crossfire — from Jonathan Segal
• Managing millennials: Gen Y workforce seeks information, feedback, work/life balance — from Knoxville News Sentinel
• What Will Your Workplace Look Like in 2023? — from Wired’s Innovation Insights
• The Impact of Breadwinner Moms on HR — from Mike Haberman’s Omega HR Solutions
• Captain America Comes to NEO: 5 Ways to Help Employees Battle the Traffic — from ERC Insights Blog
• Preparing to Conduct HR Investigation Interviews — from i-Sight Investigation Software Blog

Wage & Hour

• How cutting employee hours due to health reform may infringe federal law — from Employee Benefit News
• Massachusetts Federal Court Provides Important Reminders for Challenging FLSA Collective Actions — from Wage & Hour Counsel
• FLSA Collective Action Waivers in Arbitration Agreements Okay’d — from The Wage and Hour Litigation Blog
• Wage & Hour Surprises and Risks — from Work Place Coach Blog News
• Update: Sears v. Butler — from Walter Olson’s Overlawyered
• Your Summer Intern Is Here. Now What? — from Harvard Business Review
• Challenges (and Solutions) to Unlimited Vacation Policy — from Blogging4Jobs

Labor Relations

• Here’s Your Annual Post On Everything That’s Wrong With Unions — from The HR Capitalist, Kris Dunn
• NLRB and Social Media — from Wyatt Employment Law Report

Your employees are BYODing, whether you like it or not

According to a survey released yesterday by the Pew Internet & American Life Project, 61 percent of Americans own a smartphone. Employers need to pay attention to this number. Ownership of smartphones has reached a critical mass in our society.

Given the proliferation of these devices, it makes sense that employees are bringing them to work, whether employers permit it or not. According to another recent survey, conducted by analyst house Ovum [h/t: ZD Net], 56.8 percent of employees use personal devices at work. Seventy percent of those employees who use personal devices at work are using a smartphone, and of those smartphone-owning employees, more than one-third bring them to work either without the knowledge of their IT department, or in spite of an outright corporate ban on personal devices in the workplace.

These numbers mean that a Bring Your Own Device program is no longer an option, but should be required. If employees are going to bring personal devices into the workplace, and use them to connect to your network, you need to deploy reasonable policies  to govern their use and protect your network and security, instead of ignoring the issue or instituting prohibitions that employees will ignore anyway.

To put it another way, consider this thought from Adrian Drury, practice leader for consumer impact IT with Ovum, as quoted by ZD Net, “If you take the King Canute approach and try and drive that behaviour underground you just lose control of it.” Regain the control you need by rolling out a BYOD program.

If you are considering implementing a BYOD program, start with these posts from the archives to gain some background on the issues you should be thinking about:

• Don’t forget these 5 security issues in your BYOD policy
• 10 thoughts for your mobile device policy

My latest book — The Employer Bill of Rights: A Manager’s Guide to Workplace Law — also contains a sample BYOD policy for you to consider.

Controlling the comparative can control the discrimination case

One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the discrimination bonus round to prove that the employer’s legitimate non-discriminatory reason was a pretext. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap.

Louzon v. Ford Motor Co. (6/4/13) [pdf] illustrates the important role a determination of “similarly situated” plays in discrimination cases.

Moien Louzon, a product engineer at Ford, took an approved leave of absence to visit family in Gaza. While abroad, Israel closed its borders, stranding Louzon in Gaza. Ford initially extended his leave of absence, but by the time the State Department could evacuate him, the extension had expired and Ford had terminated him.

In Louzon’s subsequent national-origin discrimination lawsuit, Ford filed a motion in limine, which sought to precluded Louzon from offering at trial any evidence of comparable employees on the basis that none were similarly situated as a matter of law. The district court granted Ford’s motion and, on its own accord, granted summary judgment to Ford and dismissed Louzon’s case.

The appellate opinion dealt with two issues — one procedural and one substantive.

• Procedurally, the court decided that the district court had improperly decided a non-evidentiary issue via the motion in limine — whether there existed any comparable employees similarly situated to Louzon. A motion in limine is a procedural mechanism to decide evidentiary issues before trial. The trial court, however, used it to decide a disputed legal issue at the heart of the case. By doing so, it treated the motion in limine as a motion for summary judgment, but without providing Louzon the procedural protections in place in responding to a summary judgment motion. The court made is clear that litigants cannot use motions in limine to get a second bite at the summary judgment apple.

• Substantively, the court took up the issue of whether the trial court correctly determined that there did not exist any comparable employees similarly situated to Louzon. The court was concerned over the district court’s reliance on an outdated rule that mandated that comparative employees share the same supervisor. Instead, the 6th Circuit clarified that in determining whether employees are similarly situated, a court must “make an independent determination as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-protected employee.” Merely examining whether there exists a shared supervisor is too narrow of a standard.

Similarly situated lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” can be dispositive of the issue of discrimination. For this reason, it is wise to examine any potential similarly situated employees for similar or dissimilar treatment under like circumstances before taking action against a protected employee.

Facebook posts as evidence of retaliation

I’ve written before about the dangers of employers accessing employee’s social media accounts without appropriate controls in place. One of the biggest risks is that an employer will learn some protected fact about an employee (e.g., medical information) that could lead to an inference of a discriminatory motive if that employee later suffers some adverse action.

Deneau v. Orkin, LLC (S.D. Ala. 5/20/13), illustrates this risk in practice. One week before Orkin terminated Tammy Deneau for repeatedly working overtime without authorization, Deneau posted the following on her personal Facebook page: “anyone know a good EEOC lawyer? need one now.” At his deposition, Deneau’s branch manager testified that he saw the comment on her Facebook page and faxed it to the division human resources manager, who, in turn, recalled that management-level discussion about the Facebook post preceded Deneau’s termination.

The court concluded, with very little discussion, that the Facebook post qualified as protected activity to support Deneau’s retaliation claim, and that she had made out a prima facie case of retaliation:

Based on the close temporal proximity between Orkin learning of the Facebook comment and Plaintiff’s termination, the Court finds that Plaintiff has established a prima facie case of retaliation.

Nevertheless, Deneau lost her retaliation claim, because she could not prove that the employer’s legitimate non-retaliatory reason (the repeated unauthorized overtime) was a pretext for retaliation.

Even though the employer won this case, it nevertheless illustrates the dangers employers face when reviewing employees’ social media accounts. Facebook, Twitter, and other social media channels can prove to be treasure trove of protected information — information about an employee’s personal and family medical issues, religious issues, genetic information, and, like this case, protected complaints about discrimination.

If you have a legitimate reason to review an employee’s social media accounts (e.g., is the employee trashing your business online, or is the employee divulging confidential information?) do so with appropriate controls in place. Have a non-decision maker conduct the review, and provide to the appropriate decision makers a report sanitized of any protected information. This simple control will insulate your organization from any argument that the decision maker was motivated by an unlawful animus based on protected information discovered in the employee’s social media account, and could prevent an expensive and risky lawsuit.

Lactation discrimination = pregnancy discrimination

Last February I reported on EEOC v. Houston Funding, in which a Texas district court held that an employee, fired after asking to pump breast milk at work, could not go forward with her pregnancy discrimination claim. The court reasoned that because lactation does not start until after pregnancy, it is not a condition “related to” pregnancy, and therefore the Pregnancy Discrimination Act amendment to Title VII do not protect lactation as sex discrimination.

At the time, I urged everyone not to overreact to one anomalous decision:

[T]he last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination. ...

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that ... Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate.

Late last week, the 5th Circuit agreed, and reversed the district court’s decision dismissing the case. Specifically, the court held that lactation is a medical condition related to pregnancy because it is a “physiological result of being pregnant and bearing a child.” In reaching this conclusion, the court analogized lactation to other physiological changes women undergo during and immediately after pregnancy:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”

To simplify matters, because men cannot lactate, it is discriminatory to deny an employee’s lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

When you couple this decision with the FLSA’s recent amendment that require employers to accommodate workplace lactation needs, it is more clear than ever than employees have a workplace right to lactate.

You can download a pdf of the 5th Circuit’s EEOC v. Houston Funding decision here.

Hat tip: Workplace Prof Blog