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Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-1
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
HR HR MythbustersMythbusters
Katrina GriderKatrina GriderHouston, TexasHouston, Texas
Board Certified in Labor and Board Certified in Labor and Employment LawEmployment Law
Texas Board of Legal SpecializationTexas Board of Legal Specialization
Texas SuperLawyerTexas SuperLawyer®® 20032003--2006, 2006, 2011, 20122011, 2012
Joe BontkeJoe BontkeHouston, TexasHouston, Texas
Outreach Manager & OmbudsmanOutreach Manager & Ombudsman
EEOC Houston District Office EEOC Houston District Office
U.S. Equal Employment U.S. Equal Employment Opportunity CommissionOpportunity Commission
What’s In Your
“Backpack”?
What’s In Your
“Backpack”?
UU ItIt’’s what I packs what I pack””
UU ItIt’’s who I ams who I am
UU ItIt’’s my s my ““stuffstuff””
What is YOUR HR Role???
What is YOUR HR Role???
Part of the ProblemPart of the ProblemOrOrRole ModelRole Model
Status QuoStatus QuoOrOrDynamic HR MythDynamic HR Myth
ReactiveReactiveOrOrProactiveProactive
Prosecutor, Judge Prosecutor, Judge and Juryand Jury
OrOrNeutral FactfinderNeutral Factfinder
One of the GangOne of the GangOrOrProfessionalProfessional
RubberstamperRubberstamper, ,
OstrichOstrich
OrOrDecisionmaker, Decisionmaker,
OnionOnion--peelerpeeler
AdvocateAdvocateOrOrAdvisorAdvisor
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-2
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
PERCEPTIONPERCEPTION
REALITYREALITY
Managers: Stay in Your Lane
Do not go drinking/shopping/fishing or stuff with the people you supervise
Do not Facebook friend anybody you supervise (directly or indirectly)
Do not sleep with peopleDo not go native, once you become a
supervisorDo not run your mouth about
confidential management stuff
HR Myth #1:HR Myth #1:
It WasnIt Wasn’’t Me t Me …… I DidnI Didn’’t t Approve ItApprove It
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-3
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
The Fable:Jean de la Fontaine (1679)
The Fable:The Fable:Jean de la Fontaine (1679)Jean de la Fontaine (1679)
The flatterer seeks some benefit at your expense.The flatterer seeks some benefit at your expense.The flatterer seeks some benefit at your expense.
The Supreme Court’s Cat’s Paw Theory of Liability (pp. 2-5)
The Supreme CourtThe Supreme Court’’s Cats Cat’’s Paw s Paw Theory of Liability (pp. 2Theory of Liability (pp. 2--5)5)
An employee may establish unlawfulemployment discrimination or retaliationwhen:
a biased non-decisionmaker (the monkey, a.k.a. the manager)
influences an unbiased decisionmaker (the cat, a.k.a. HR)
to take action that HR otherwise would not take.
An employee may establish An employee may establish unlawfulunlawfulemployment employment discriminationdiscrimination or or retaliationretaliationwhen:when:
a a biased nonbiased non--decisionmakerdecisionmaker (the (the monkey, monkey, a.k.a. the managera.k.a. the manager) )
influences an influences an unbiased unbiased decisionmakerdecisionmaker (the cat, (the cat, a.k.a. HRa.k.a. HR) )
to take action that HR otherwise to take action that HR otherwise would not take.would not take.
HR Myth #2:HR Myth #2:
I DonI Don’’t Need to Know Any of t Need to Know Any of This @$%^*!This @$%^*!
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-4
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Yellow Transportation (YRC)$11 Million Settlement (06/29/12)Yellow Transportation (YRC)$11 Million Settlement (06/29/12)
Largest trucking company in U.S.Largest trucking company in U.S.
Black employees subjected to:Black employees subjected to:
WW Nooses, NNooses, N--words, racist graffiti and words, racist graffiti and cartoonscartoons
WW Harsher discipline, scrutiny and work Harsher discipline, scrutiny and work assignments than whitesassignments than whites
WW Company ignored complaints for yearsCompany ignored complaints for years
Sister company paid $10M in 2010 for same Sister company paid $10M in 2010 for same conductconduct
Cook County Sheriff’s Dept.$70,000 for Name-calling (10/12) Cook County Sheriff’s Dept.$70,000 for Name-calling (10/12)
Male manager referred to females Male manager referred to females employees as employees as ““bitchesbitches””
Male manager told a female Male manager told a female ““shut the shut the f*** up you lying bitchf*** up you lying bitch””
Court: use of the term Court: use of the term ““bitchbitch’”’” was was gender specific, and impact was to gender specific, and impact was to degrade women in generaldegrade women in general
Unlawful conduct by managerUnlawful conduct by manager
Cold Hard Truth: Cold Hard Truth: These Laws are for REALThese Laws are for REAL
Title VIITitle VII
ADA, ADAAAADA, ADAAA
ADEAADEA
GINAGINA
FMLA, FLSAFMLA, FLSA
NLRANLRA
Equal Pay Act, Lilly Ledbetter Fair Pay ActEqual Pay Act, Lilly Ledbetter Fair Pay Act
Pregnancy Discrimination ActPregnancy Discrimination Act
State Human Rights LawsState Human Rights Laws
These laws apply to These laws apply to EVERYBODYEVERYBODY: Temps, : Temps,
Contractors, Vendors, and Contractors, Vendors, and Third PartiesThird Parties
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-5
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Copyright 2012. Katrina Grider & Associates. All rights reserved.Copyright 2012. Katrina Grider & Associates. All rights reserved.
The Dynamic EEO CircleThe Dynamic EEO Circle
RecruitingHiring
Interviewing
RecruitingHiring
Interviewing
TerminationLayoffs
RIF’s
TerminationLayoffs
RIF’s BonusesRaises
Compensation
BonusesRaises
Compensation
Verbal/WrittenVerbal/WrittenDisciplinary Disciplinary
ActionAction
Performance Evaluations
Performance Evaluations
PromotionsTransfers
Demotions
PromotionsTransfers
Demotions
TITL
E VII
A
DA /AD
AAA A
DEA
TCHRA
TITL
E VII
A
DA /AD
AAA A
DEA
TCHRAG
INA FMLA FLSA STATE LAW
S
GINA FM
LA FLSA STATE LAWS
USERRA NLRA ERISA COBRAUSERRA NLRA ERISA COBRA
45E45E
90E90E
180E180E
225E225E
270E270E
360E360E
HR Myth #3:HR Myth #3:The FCRA Only Applies The FCRA Only Applies
If YouIf You’’re Doing Credit Checksre Doing Credit Checks
App. 15 App. 15 –– 19, pp. 5219, pp. 52--6969
The Fair Credit Reporting ActThe Fair Credit Reporting Act
Applies to employers who use third Applies to employers who use third parties (consumer reporting agencies) parties (consumer reporting agencies) to provide information about applicantsto provide information about applicants
Does not apply to employers who do Does not apply to employers who do background checks internallybackground checks internally
Does apply to internal investigations Does apply to internal investigations where credit information used to where credit information used to discipline employeediscipline employee
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
FCRA ScopeFCRA Scope
Reports obtained through Reports obtained through 33rdrd partypartybackground checks on applicants and background checks on applicants and employees = employees = consumer reports consumer reports Equifax, Experian, TransunionEquifax, Experian, Transunion
When When 33rdrd partyparty background checks involve background checks involve interview to assess character, reputation, interview to assess character, reputation, etc., = etc., = investigative reportsinvestigative reportsGoogle, ChoicePoint, Intelius, LexisNexis Google, ChoicePoint, Intelius, LexisNexis
Accurint, online background check companiesAccurint, online background check companies
Both require strict compliance with FCRABoth require strict compliance with FCRA!!
FCRA ComplianceFCRA Compliance
App. 19App. 19(p. 69)(p. 69)
Adverse Action Adverse Action LetterLetter
Step 3:Step 3:
App. 18App. 18(p. 68)(p. 68)
PrePre--Adverse Action Adverse Action Notice LetterNotice Letter
Step 2:Step 2:
App. 17App. 17
(pp. 66(pp. 66--67)67)
Consent, Disclosure Consent, Disclosure + Authorization+ Authorization
Step 1:Step 1:
HR Myth #4:HR Myth #4:
No One Will Ever Find OutNo One Will Ever Find Out
App. 20, pp. 70App. 20, pp. 70--7272
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Truth: You Will Be FiredYou Will Go Down in Flames
Truth: You Will Be FiredYou Will Go Down in Flames
Yahoo CEO Scott Yahoo CEO Scott ThompsonThompson
Fake computer science degree on Fake computer science degree on resumeresume
Best Buy Founder Best Buy Founder Richard SchulzeRichard Schulze
Internal investigation found out Internal investigation found out that he knew about the CEOthat he knew about the CEO’’s s sexual relationship with female sexual relationship with female employee and didnemployee and didn’’t report itt report it
JP Morgan Chase JP Morgan Chase Chief Investment Chief Investment Officer Ina DrewOfficer Ina Drew
$2 Billion trading loss on her $2 Billion trading loss on her watchwatch
Univ. of Arkansas Univ. of Arkansas Football Coach Football Coach Bobby PetrinoBobby Petrino
Gamed the system by hiring his Gamed the system by hiring his 2525--year old mistress over 159 year old mistress over 159 more qualified applicantsmore qualified applicants
Psychologists:Psychologists:Lying Online May Lying Online May
Be The NormBe The Norm
People who communicate online lie more in People who communicate online lie more in those interactions than they do during facethose interactions than they do during face--toto--face encounters. face encounters.
The most lies were in eThe most lies were in e--mail, followed by instant mail, followed by instant messaging, and lastly facemessaging, and lastly face--toto--face talks. face talks.
Conclusion: it may be normal to distort reality Conclusion: it may be normal to distort reality online. online.
Abstract, Liar, Liar, Hard Drive on Fire: How Media Context Affects Lying Behavior, 41 J. Applied Psych. 2492 (2011).
All That Glitters is Not GoldAll That Glitters is Not Gold
CareerExcuse.comCareerExcuse.com
FakeYourJob.comFakeYourJob.com
Reputation.comReputation.com
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
PhoneGangster.comPhoneGangster.com
Allow you to fake the caller id when Allow you to fake the caller id when calling another partycalling another party
Upon calling a person, you get to Upon calling a person, you get to choose what number appearschoose what number appears
Phone records of party called displays Phone records of party called displays the altered numberthe altered number
Can change gender of voiceCan change gender of voice ““Our service is not only fun and useful, Our service is not only fun and useful,
but it is legal as wellbut it is legal as well””
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Texas Online Impersonation Statute (Tex. Penal Code '33.07)
Texas Online Impersonation Statute (Tex. Penal Code '33.07)
WW 33rdrd degree felonydegree felony if a person sends an if a person sends an email, IM, text, tweet referring to another email, IM, text, tweet referring to another person:person:
1.1. Without obtaining the other personWithout obtaining the other person’’s s consentconsent
2.2. Intending to cause a recipient to believe Intending to cause a recipient to believe that the message was sent by that personthat the message was sent by that person
3.3. Intending to harm or defraud the personIntending to harm or defraud the person
HR Myth #5:HR Myth #5:
I Can Google Anybody I WantI Can Google Anybody I Want
App. 25, pp. 81App. 25, pp. 81--8383
Can You Google an Employee or Can You Google an Employee or Applicant on Social Media? Applicant on Social Media? NONO
Over 24 million Facebook users leave Over 24 million Facebook users leave their profiles publictheir profiles public
www.openbook.orgwww.openbook.org (shut down 07/12)(shut down 07/12)
73% of social media profiles can be 73% of social media profiles can be found through a public search enginefound through a public search engine
77% of social network uses do not 77% of social network uses do not restrict access to their photosrestrict access to their photos
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Can You Google an Employee or Can You Google an Employee or Applicant on Social Media? Applicant on Social Media? NONO
35% employers have at least once 35% employers have at least once decided to not offer a job to an decided to not offer a job to an applicant based on the content postedapplicant based on the content posted
Over 50% of the decisions based on:Over 50% of the decisions based on: Provocative photosProvocative photos
References to drinking and drug use orReferences to drinking and drug use or
BadBad--mouthing of previous employers and mouthing of previous employers and colleaguescolleagues
+
Social Media Special Issues:Social Media Special Issues:Regulating Employee Speech in Regulating Employee Speech in
the Public Sectorthe Public Sector
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
A&M Student Loses Campus Internship, Fired from A&M Student Loses Campus Internship, Fired from Research Position, and Faces Disciplinary HearingResearch Position, and Faces Disciplinary Hearing
Hangover HeavenHangover Heaven
Social Media: Social Media: Public SectorPublic Sector
1.1. The entityThe entity’’s interest in determining s interest in determining the appropriate operation of the the appropriate operation of the workplace workplace outweighs outweighs the employeethe employee’’s s interest, as a citizen (1interest, as a citizen (1stst Amendment), Amendment), in commenting on a in commenting on a matter of public matter of public concern.concern.
Connick v. MyersConnick v. Myers, 461 U.S. 138 (1983), 461 U.S. 138 (1983)
2.2. EmployeeEmployee’’s speech is made during s speech is made during course of performing job dutiescourse of performing job duties Employee is Employee is notnot operating as a private operating as a private
citizen and thus has citizen and thus has nono 11stst amendment amendment protectionprotection
Garcetti v. CeballosGarcetti v. Ceballos, 126 S. Ct. 1951 , 126 S. Ct. 1951 (2006)(2006)
Social Media: Social Media: Public SectorPublic Sector
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Two Legal Tests:Two Legal Tests:““Matters of Public ConcernMatters of Public Concern””
1.1. Those which can be fairly considered Those which can be fairly considered as relating to any matter of political, as relating to any matter of political, social, or other concern to the social, or other concern to the communitycommunity
2.2. Whether the employee spoke Whether the employee spoke primarily in his role as a citizen rather primarily in his role as a citizen rather than as an employee addressing than as an employee addressing matters of only personal concernmatters of only personal concern
Snyder v. Millersville Univ. Snyder v. Millersville Univ. (2008)(2008)
Student teacher Stacy SnyderStudent teacher Stacy Snyder
District told Snyder not to post District told Snyder not to post any content about students on any content about students on her personal MySpaceher personal MySpace
Snyder posted a MySpace Snyder posted a MySpace photo entitled photo entitled ““drunken piratedrunken pirate””
Snyder invited students to her Snyder invited students to her MySpace page and posted info MySpace page and posted info directed to studentsdirected to students
District barred her campus; District barred her campus; unable to complete studentunable to complete student--teaching and could not get teaching and could not get degreedegree “Drunken Pirate”“Drunken Pirate”
Public employeePublic employee’’s purely personal s purely personal speech (typically found on social speech (typically found on social media sites) is media sites) is NOTNOT protected by 1protected by 1stst
AmendmentAmendment
SnyderSnyder’’s postings and photos did not s postings and photos did not touch on a matter of public concerntouch on a matter of public concern
Snyder was more like a public Snyder was more like a public employee/teacher than a studentemployee/teacher than a student
Snyder v. Millersville Univ. Snyder v. Millersville Univ. (2008)(2008)
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
HR Myth #6:HR Myth #6:
It Will Never Happen to MeIt Will Never Happen to Me
Crude and offensive jokesCrude and offensive jokes $275,000: $275,000: personal JURY personal JURY verdict against verdict against
manager in 2010manager in 2010
FF--bombs and potty mouthing all bombs and potty mouthing all the timethe time
Physically in peoplePhysically in people’’s facess faces
Derogatory comments to Derogatory comments to womenwomen
$365,000:$365,000:
Manager settled Manager settled case against him case against him
personallypersonally
Offensive racial and religious Offensive racial and religious commentscomments
Threw a stapler at employeeThrew a stapler at employee’’s s headhead
HR Myth #7:HR Myth #7:
I Can Say Anything I Want toI Can Say Anything I Want to
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
The 8th Deadly Sin:Engaging in “Texaco Tongue”
The 8The 8thth Deadly Sin:Deadly Sin:Engaging in Engaging in ““Texaco TongueTexaco Tongue”
TAPE RECORDING LAWSTAPE RECORDING LAWS
AllAll Parties Must Parties Must Consent:Consent:
OneOne Party Must Party Must Consent:Consent:
CA, CT, DE, FL, IL, MD, CA, CT, DE, FL, IL, MD, MA, MI, MT, NH, PA, MA, MI, MT, NH, PA, WAWA
AL, AK, CO, DC, GA, AL, AK, CO, DC, GA, HI, ID, IN, IA, KS, KY, HI, ID, IN, IA, KS, KY, LA, ME, MN, MS, MO, LA, ME, MN, MS, MO, NE, NV, NJ, NM, NY, NE, NV, NJ, NM, NY, NC, ND, OH, OK, OR, NC, ND, OH, OK, OR, RI, SC, SD, TE, RI, SC, SD, TE, TXTX, UT, , UT, VE, VA, WV, WI, WYVE, VA, WV, WI, WY
HR Myth #8:HR Myth #8:
That Would Never Happen HereThat Would Never Happen Here
Analysis of Defendants2005 - 2011
Analysis of Defendants2005 - 2011
4% 1%
12%
41%
42%
Governmental Entities
Service/Retail
Manufacturing &Industrial Transportation
Other
Source: Source: ““Employment Practices Liability Employment Practices Liability –– Jury Awards Trends and Statistics, 2012Jury Awards Trends and Statistics, 2012””.. ©© 2012 2012 LRP PublicationsLRP Publications
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-15
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Defendant Awards2005 - 2011
Defendant Awards2005 - 2011
$1 $1 –– $53.9M$53.9M
$613 $613 –– 53.9M53.9M
$1 $1 -- $30M$30M
$1 $1 -- $9M$9M
$1 $1 -- $20M$20M
RangeRangeTypeType MedianMedian AverageAverage
Government Government EntitiesEntities
$250,000$250,000 $653,130$653,130
Manufacturing/ Manufacturing/ IndustrialIndustrial
$176,250$176,250 $541,591$541,591
Service/RetailService/Retail $135,000$135,000 $566,130$566,130
TransportationTransportation $144,000$144,000 $1,644,756$1,644,756
OverallOverall $200,800$200,800 $636,423$636,423
Source: Source: ““Employment Practices Liability Employment Practices Liability –– Jury Awards Trends and Statistics, 2012Jury Awards Trends and Statistics, 2012””.. ©© 2012. 2012. LRP PublicationsLRP Publications
Discrimination Jury Awards 2005-2011
Discrimination Jury Awards 2005-2011
Source: Source: ““Employment Practices Liability Employment Practices Liability –– Jury Awards Trends and Statistics, 2012Jury Awards Trends and Statistics, 2012””.. ©© 2012 2012 LRP PublicationsLRP Publications
TypeType MedianMedian AverageAverage
DisabilityDisability $292,500$292,500 $664,094$664,094
AgeAge $247,800$247,800 $1,038,318$1,038,318
RaceRace $215,652$215,652 $475,972$475,972
SexSex $150,000$150,000 $574,239$574,239
OtherOther $103,722$103,722 $321,075$321,075
OverallOverall $199,200$199,200 $606,004$606,004
Plaintiff Recovery Probability for Discrimination (2005 - 2011)
Plaintiff Recovery Probability for Discrimination (2005 - 2011)
61%58%
50% 50% 49%47%
32%
0%
10%
20%
30%
40%
50%
60%
70%Pregnancy
Sex
Overall
Disability
Age
Race
NationalOrigin
Source: Source: ““Employment Practices Liability Employment Practices Liability –– Jury Awards Trends and Statistics, 2012Jury Awards Trends and Statistics, 2012””.. ©© 2012 2012 LRP PublicationsLRP Publications
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-16
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
HR Myth #9:HR Myth #9:
ItIt’’s All Frivolous Stuffs All Frivolous Stuff
U.S. EEOC Charges: 2012
U.S. EEOC Charges: 2012
0
5000
10000
15000
20000
25000
30000
35000
40000Retaliation (All)
Race
Retaliation (Title VII)
Sex
Disability
Age
National Origin
Religion
Equal Pay
GINA0
5000
10000
15000
20000
25000
30000
35000
40000Retaliation (All)
Race
Retaliation (Title VII)
Sex
Disability
Age
National Origin
Religion
Equal Pay
GINA
10% of All EEOC ChargesCame from Texas in 201210% of All EEOC ChargesCame from Texas in 2012
Retaliation (All)RaceRetaliation (Title VII)SexDisabilityAgeNational OriginReligionDisabilityColorEPAGINA
Retaliation (All)RaceRetaliation (Title VII)SexDisabilityAgeNational OriginReligionDisabilityColorEPAGINA
41%41%
36%36%
36%36%29%29%
23%23%
21%21%
% of Total State Charges
17%17%
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
2012: EEOC Charge Settlements (in millions)
2012: EEOC Charge 2012: EEOC Charge Settlements (in millions)Settlements (in millions)
$129.3$98.5
$93.6$84.4
$76.1$66.8
$29.6$18.0
$12.6$10.0
$0.08
$0.0 $50.0 $100.0 $150.0
GINA
Religion
Equal Pay Act
Pregnancy
National Origin
Sex Harassment
Disability
Race
Age
Harassment
Sex-based Discrim.
$129.3$98.5
$93.6$84.4
$76.1$66.8
$29.6$18.0
$12.6$10.0
$0.08
$0.0 $50.0 $100.0 $150.0
GINA
Religion
Equal Pay Act
Pregnancy
National Origin
Sex Harassment
Disability
Race
Age
Harassment
Sex-based Discrim.
HR Myth #10:HR Myth #10:
II’’m Teflon m Teflon …… You Better You Better Follow the Chain of Follow the Chain of
CommandCommand
App. 9App. 9--10, pp. 3310, pp. 33--3535
Price v. FedEx Federal Ct. - Houston
Price v. FedEx Federal Ct. - Houston
Company fired black employee after he complained of discrimination
Houston jury found non-promotions and firing were retaliatory
Company fired black employee after he complained of discrimination
Houston jury found non-promotions and firing were retaliatory
Back pay $180,000
Punitive $2,500,000
Compensatory $170,000
TOTAL $2,850,000
Jury Time
Jury Vote
4.25 Hours
8-0 (3M/5F)
Demand = $390,000
Offer = $55,000
Demand = $390,000Demand = $390,000
Offer = $55,000Offer = $55,000
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Retaliation FactorsRetaliation Factors Take adverse action against employee
who engages in a protected activity:Excessive monitoring of employee’s
performance
Ignoring or avoiding one who filed a complaint
Threatening employee with disciplinary action or termination
Intimidating employee (chain of command)
Causal connection between protected activity and adverse action
Take adverse action against employee who engages in a protected activity:Excessive monitoring of employee’s
performance
Ignoring or avoiding one who filed a complaint
Threatening employee with disciplinary action or termination
Intimidating employee (chain of command)
Causal connection between protected activity and adverse action
Retaliation AwardsOverall (2005 – 2011)
Retaliation AwardsOverall (2005 – 2011)
Award MedianAward Median $208,275$208,275
Award Probability RangeAward Probability Range $50,675 $50,675 –– 669,847669,847
Award RangeAward Range $1.00 $1.00 SS $30,000,000$30,000,000
Award MeanAward Mean $741,971$741,971
Source: Source: ““Employment Practices Liability Employment Practices Liability –– Jury Awards Trends and Statistics, 2012Jury Awards Trends and Statistics, 2012””.. ©© 2012 2012 LRP PublicationsLRP Publications
HR Myth #11:HR Myth #11:
If ItIf It’’s Not in Writings Not in Writing……It It DoesnDoesn’’t Countt Count
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
U.S. Supreme CourtU.S. Supreme CourtKasten v. St. Gobain PlasticsKasten v. St. Gobain Plastics (2011)(2011)
OralOral complaintscomplaints are are goodgood enoughenough——does does notnot have to be in writinghave to be in writing
Includes emails, voice mail, IM, texts, Includes emails, voice mail, IM, texts, tweets, Facebook postingstweets, Facebook postings
Once the company is on notice:Once the company is on notice:UU Duty to promptly investigateDuty to promptly investigate
UU Duty promptly stop the harassment, Duty promptly stop the harassment, discrimination, or retaliationdiscrimination, or retaliation
HR Myth #12:HR Myth #12:We DonWe Don’’t Have to Hire or Work with t Have to Hire or Work with
ThoseThose PeoplePeople
App. 21 App. 21 –– 22, pp. 7322, pp. 73--7676
EEOC New ConvictionEEOC New ConvictionGuidelinesGuidelines
Have you ever been convicted? Have you ever been convicted?
““Answering yes is not an automatic Answering yes is not an automatic bar to employmentbar to employment””
1.1. Nature and gravity of offenseNature and gravity of offense
2.2. Time that has passed, conduct and/or Time that has passed, conduct and/or completion of sentencecompletion of sentence
3.3. Nature of the job held or soughtNature of the job held or sought
►► Note: Deferred adjudication = not a Note: Deferred adjudication = not a conviction in Texasconviction in Texas
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
EEOCEEOC’’s New Conviction Policy: s New Conviction Policy: Individualized AssessmentIndividualized Assessment
Facts, circumstances and number of offensesFacts, circumstances and number of offenses
Older age at the time of conviction, or release Older age at the time of conviction, or release from prisonfrom prison
Length and consistency of job history (before Length and consistency of job history (before and after conviction)and after conviction)
Rehab efforts (training, education)Rehab efforts (training, education)
Employment or character referencesEmployment or character references
Whether the person is bondedWhether the person is bonded
Evidence that person did same type of work on Evidence that person did same type of work on previous jobs with no problemsprevious jobs with no problems
EEOC EEOC Arrests: Arrests: Not OKNot OK
►► Have you ever been arrested?Have you ever been arrested?
►► Have you ever been arrested for a Have you ever been arrested for a misdemeanor?misdemeanor?
►► Have you ever been locked up?Have you ever been locked up?
►► Have they picked you up before?Have they picked you up before?
►► Ever had to spend a night in jail?Ever had to spend a night in jail?
The Dimensions of DiversityThe Dimensions of Diversity
Class
Ethnicity
Age
Race
Gender
Veteran
Hierarchy and Status
Personality
Education
Family Situations
Sexual Orientation
Disabilities
Religion
Copyright 2013. All Rights ReservedKatrina Grider & Associates
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THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
America’s Workforce 2012:Gender
America’s Workforce 2012:Gender
53%47%
Men
Women
53%47%
Men
Women
Source: Bureau of Labor StatisticsSource: Bureau of Labor Statistics
Total U.S. Civilian Labor Force (employed + unemployed)Total U.S. Civilian Labor Force (employed + unemployed)
America’s Diversity:2010 Census
America’s Diversity:2010 Census
62%
1%3%
0%
14%11% 5%
4%
White
Hispanic
Black
Some Other Race
Asian
Two or More Races
American Indian
Native Hawaiian/OtherPacific Islander
62%
1%3%
0%
14%11% 5%
4%
White
Hispanic
Black
Some Other Race
Asian
Two or More Races
American Indian
Native Hawaiian/OtherPacific Islander
U.S. States Ranked by Percent Minority: 2025U.S. States Ranked by Percent Minority: 2025
$$ 50%50% HI, DC, CA, NM, HI, DC, CA, NM, TXTX
40 40 –– 49%49% NY, MD, NJ, AK, LA, AZ, FL, NV, NY, MD, NJ, AK, LA, AZ, FL, NV,
30 30 –– 39%39% GA, MS, IL, VA, SC, DE, CT, COGA, MS, IL, VA, SC, DE, CT, CO
20 20 –– 29%29% NC, AL, MA, OK, RI, MI, WA, TN, KS, NC, AL, MA, OK, RI, MI, WA, TN, KS, PAPA
10 10 –– 19%19% AR, OH, OR, MO, WI, WY, UT, ID, MN, AR, OH, OR, MO, WI, WY, UT, ID, MN, IN, NE, SD, MT, ND, KYIN, NE, SD, MT, ND, KY
< 10%< 10% IA, WV, NH, VT, MEIA, WV, NH, VT, ME
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-22
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Hispanic Heritage is Diverse Hispanic Heritage is Diverse The U.S. Hispanic Population: The U.S. Hispanic Population:
47,485,000 (as of 2009)47,485,000 (as of 2009)
Source: Bureau of Labor Statistics – Table 37Source: Bureau of Labor Statistics – Table 37
Mexican 66.4%Mexican 66.4%Mexican 66.4%
Central/South America –
15.9%
Central/South Central/South America America ––
15.9%15.9%
Cuban 3.5%Cuban 3.5%Cuban 3.5%
Puerto Rican 8.9%Puerto Rican 8.9%Puerto Rican 8.9%
EEOC Policy EEOC Policy Guidance:Guidance:
Safety Safety considerationsconsiderations
Business Business necessitynecessity
Practical ApplicationPractical Application::
English may be English may be required to be required to be spoken during spoken during working timeworking time
English is optional English is optional during meal and during meal and break periods.break periods.
Management Lie #13:Management Lie #13:
Age AinAge Ain’’t Nothing But a Numbert Nothing But a Number
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-23
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
Generational TimelinesGenerational Timelines
GroupGroupAge in Age in 20102010
BirthBirth
YearsYearsCivilian Civilian
WorkforceWorkforce
Veterans, Silent Veterans, Silent OnesOnes
TraditionalistsTraditionalists6565--8585 19251925--19451945 13,069,00013,069,000
Baby BoomersBaby Boomers 4646--64 64 19461946--19641964 81,215,00081,215,000
Generation X,Generation X,
Xers, Gen. XXers, Gen. X 3434--4545 19651965--19761976 34,238,00034,238,000
Nexters, Gen. Y, Nexters, Gen. Y, Millennials, Echo Millennials, Echo
BoomersBoomers1313--3333 19771977--19971997
61,049,00061,049,000HH
(age 16(age 16--33)33)
Source: Bureau of Labor Statistics Total U.S. Civilian LabSource: Bureau of Labor Statistics Total U.S. Civilian Labor Force (employed + unemployed)or Force (employed + unemployed)
America’s Workforce 2012:Age
America’s Workforce 2012:Age
10%
22%
11%
8%
2%
23%20%
4%
Age 16-19
Age 20-24
Age 25-34
Age 35-39
Age 40-49
Age 50-59
Age 60-69
Age 70+
10%
22%
11%
8%
2%
23%20%
4%
Age 16-19
Age 20-24
Age 25-34
Age 35-39
Age 40-49
Age 50-59
Age 60-69
Age 70+
Source: Bureau of Labor StatisticsSource: Bureau of Labor Statistics
Total U.S. Civilian Labor Force (employed + unemployed)Total U.S. Civilian Labor Force (employed + unemployed)
47%47%
53%53%
ADEAADEA
Management Lie #14:Management Lie #14:Everybody Gets Everybody Gets
Paid the Same These DaysPaid the Same These Days
Copyright 2013. All Rights ReservedKatrina Grider & Associates
Page-24
THEHRA 2013 Summer Conference HR Mythbusters Round I and IIKatrina Grider and Joe Bontke
America’s Workforce: 2011Median Yearly Pay
America’s Workforce: 2011Median Yearly Pay
05000
100001500020000250003000035000400004500050000
Asian White Black Hispanic
Men
Women
05000
100001500020000250003000035000400004500050000
Asian White Black Hispanic
Men
Women
Source: U.S. Bureau of Labor Statistics [Employed, full-time wage and salary workers]Source: U.S. Bureau of Labor Statistics [Employed, full-time wage and salary workers]
.77.77¢¢
The next Equal Pay Day is April 16, 2013. The next Equal Pay Day is April 16, 2013. This date symbolizes how far into 2013 This date symbolizes how far into 2013
women must work to earn what men women must work to earn what men earned in 2012.earned in 2012.
DoDo read and follow the EEO policies read and follow the EEO policies
DoDo report the conduct ASAP to HR!report the conduct ASAP to HR!
DoDo document, document, and documentdocument, document, and document
DoDo report any acts of retaliationreport any acts of retaliation
DonDon’’tt sit on the complaint (verbal/written)sit on the complaint (verbal/written)
DonDon’’tt retaliate against someone who retaliate against someone who complainscomplains
DonDon’’tt ignore the ignore the ““dondon’’tt--saysay--anythinganything--butsbuts””
The Key: Do’s and Don’tsThe Key: DoThe Key: Do’’s and Dons and Don’’tsts
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