the top hr risks you can't ignore in a down economy - how to protect yourself

The Top HR Risks in a Down Economy –

How to Protect Yourself

Allison West, Esq., SPHREmployment Practices Specialists

ITIT’’S ALL IN S ALL IN WHO YOU KNOWWHO YOU KNOW

(c) Copyright 2012 Employment Practices Specialists.

Who do you know?

Three Caucasian women were friendly with African American co-workers in the workplace. Other colleagues did not think this was a good idea and would say “we missed you ladies at the [Ku Klux] Klan meeting last night.” The women were also were forced to view racial graffiti and listen to racial slurs and racist jokes.

BARRETT v. WHIRLPOOL CORPORATION(c) Copyright 2012 Employment Practices

Specialists.

Who do you know? Associational Discrimination

Workers who are not members of a particular protected category, but who have a relationship with “protected” persons

Include proper language in your discrimination and harassment policies

The Company also prohibits harassment based on the perception that an employee, applicant, or independent contractor has the characteristics of someone in a protected category, or is associated with a person who has or is perceived as having the characteristics of someone in a protected category.

Add to your training!


We Are FamilyWe Are Family


Meet Laurie Chadwick• Mom to one child, age 11, and • triplets, age 6• Excellent performer • Encouraged to apply for Team Lead


She was asked how she would respond if an associate did not complete a project on time. Frustrated with Laurie’s response, her supervisor stated, “Laurie, you are a mother. Would you let your kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?”


Really? "It was nothing you did or

didn't do. It was just that you are going to school, you have the kids and you have a lot on your plate right now....If the three [promotion] interviewers were in your position, they would feel overwhelmed."


Family Responsibility Discrimination (FRD) is a form of sex discrimination in which workers are

treated worse/differently because of their caregiving responsibilities for children, elderly parents, or ill relatives

No specific law Employers lose 90% of these cases The average award is $100,000 and the

largest award is $25 million

All in the Family


Be careful…


Playing in the Sandbox


Red Flags for Discrimination

• You have a bad attitude• You don’t fit in• You’re not a team player• You’re not a culture fit• The all time winner

– We are terminating your employment because you are an at-will employee


Of course I use FB and other sites for our

recruiting. I find the information very

reliable.


The Big D…Discrimination


Candidate’s FB page says…


Downside of FB Using protected characteristics – even subconsciously E.g., recruiter views candidate’s Facebook profile and

sees they have recently ‘liked’ The American Cancer Society Facebook Fan Page.

assumptions about the employees health – suffers from cancer? Undergoing treatment?


Beware…• Apex Company uses LinkedIn as a key tool to find

candidates.• Recently, Apex hired approximately 18

candidates using groups on this site.• Given this success, the company concludes that

LinkedIn is the best method to find qualified candidates.

• Unfortunately, using only LinkedIn resulted in only a couple black candidates being considered.– Quantcast.Com reports that only 7% of the

users on LinkedIn are black.


– Consider the risks of managers giving recommendations to current and former employees

– Restrict posting job openings before you have informed your soon-to-be-terminated employee

Look out for LinkedIn


Don’t forget off-duty statutes

• Approximately 28 states • E.g., California law restricts employers'

right to demote, suspend, or discharge an employee for certain lawful conduct that occurs during nonworking hours and away from the employer's premises.


TXTUL HRSMNT TXTUL HRSMNT - NO LOL- NO LOL


New form of harassment Include cell phones, texting, SMS, instant

messages Your policy Harassment training

Look for increase in cell phone usage Be careful about monitoring texts or other

electronic communications

B CrflB Crfl


You said what?

(c) 2013 Employment Practices Specialists

I can’t believe they said that…

Patrick Longbehn was a 34-year-old police officer with the City of Moose Lake who was terminated.

Because he was dating an 18-year-old woman, certain individuals, had referred to Longbehn as “Pat the Pedophile.”

Because this nickname was raised in connection with his termination, Longbehn sued the city and various individuals for defamation.

Jury awarded $230,000 for past and future harm to Patrick's reputation,

mental distress, humiliation and embarrassment; $3000 for future health care expenses; $90,000 for past and future wage loss; $250,000 for punitive damages


You didn’t really say that…

• Dave rots at excel• Lydia is one of the meanest people I

have ever met.• Charlie left the company the same

time we discovered $100k was missing from our account.


Defamation False statement of fact Unprivileged About an employee Disclosed to a third person Causes damage

individual’s reputation, or public ridicule, shame, hatred or

contempt


Defamation Defense Qualified Privilege

statements made without malice to those with a need-to-know about job performance or

qualifications Truth is a defense!


References Authorization and release Specific guidelines

Limit who can respond Only verify employment Eligibility for rehire

Reference letters as part of settlements – use caution

Be careful when omitting negative information!

Be Proactive


Blacklisting criminal offense in some states

Accurate and objective personnel file Limit discussions regarding terminations,

performance, other employment actions Watch your actions, not just your words

Be Proactive


I believed you!


We promise… Employer promises Jarrett that if he leaves his old

job, he will receive part ownership after 10 years. Company prospers over the next ten years. Just before Jarrett was to be made part owner, the

employer sold the business leaving Jarrett without any ownership.

Jarrett sues and…


And the verdict is…

The jury awarded Jarrett $800,000.

The Court of Appeals affirmed the verdict.


Employer ___________ deceives an employee concerning a material fact

Employee _________ relied on the false representation and was damaged

reasonablyreasonably

intentionallyintentionally

Fraud


Be truthful Avoid overselling

job security: “permanent”, “you’ll be here forever,” “as long as you do a good job”

stability of the company: “you’ll make a bundle on our stock option plan”

career development: “everyone gets promoted in their first year with us,” guaranties of personal development

Salary inducements: "most competitive" salaries, "best" benefits, "assured" growth, and highly favorable comparisons with the applicant's existing job.

An employer should make only factual representations that can be proved.

A job for life…not


Be Proactive In some states: misdemeanor to

fraudulently induce a person to move from one place to another in order to work E.g., Cal Lab C §§970-971 and double

damages! Lab C §972 Avoid making promises or guarantees you

can’t keep Interview checklist Follow your handbook!


THE HIGH CO$T OF GETTING EVEN


It stinks＄Ronald Luri, 55, accused Republic

Services Inc. of retaliation and of forging documents critical of his job performance after he refused to fire three of his employees -- all about 60 years old -- on the grounds that such actions would constitute age-discrimination.

＄Jury awarded $3.5 million – lost wages and $43.1 million in punitive damages.


Easy Claims to Make

Employee engaged in protected activity by Opposition Participation

Employer knew about the protected activity

Employer took materially adverse action


Easy Claims to Make


Examples of adverse action Refusal to hire Denial of job benefits Denial of promotion Demotion Suspension Reprimands Negative job reference Termination

Be Proactive

Promptly and thoroughly investigate all claims Secondary review of employment decisions Evaluate the employment decision with an objective

standard - how a reasonable person in the employee’s position would view the action considering “all the circumstances”

Listen to complainers (e.g., ASK employees why they are refusing to or begrudgingly follows orders)

Apply Company rules consistently


Be Proactive


Watch out for the causal connection Document, document, documentPoliciesClear complaint proceduresTrain managersLimit those who “need to know”Beware of unjustified negative job

referenceFollow-up is key!

The Bully and the Bottom Line

WhatWhat’’s all the fuss?s all the fuss?

Researchers find bullying more harmful than sexual harassment*

25% of targets and 20% of witnesses leave their jobs

4/08: Indiana Supreme Court upheld a verdict of $325,000 against a bully

*American Psychological Association (2008, March 9). Bullying More Harmful Than Sexual Harassment On The Job, Say Researchers. ScienceDaily.

Retrieved May 8, 2008, from http://www.sciencedaily.com /releases/2008/03/080308090927.htm

(c) 2013 Employment Practices Specialists.

Repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms: verbal abuse offensive conduct/behaviors (including nonverbal) which are

threatening, humiliating or intimidating work interference -- sabotage -- which prevents work from

getting done.

Source: The Workplace Bullying Institute WBI, 360.656.6630


Bullying IsBullying Is

Legitimate authority to control work and performance

Providing constructive feedback Political correctness Setting reasonable goals

Bullying IsnBullying Isn’t’t


Bullies bully because… EMPLOYERS LET THEMEMPLOYERS LET THEM Typically

No consequences for their conduct

In positions of powerThey get something out

of it


Rationalizing bullying behavior

Oh, that’s just Joe…You know how Betty is…

If I ignore it, maybe it’ll go away We’ve lived with it this long, we can

tolerate it a bit longer I have to think about the bottom

line, don’t I? I’ll deal with it when the behavior

really gets out of line But, Joe/Betty are such good

performers! I tried to get them to stop…but they

just wouldn’t


But bullying isn’t illegal!

Brenda Boss pushed and shoved Emma Employee (assault and

battery, potential OSHA violation), locked her in the conference room (false

imprisonment), spread rumors about her performance (defamation), deliberately left Emma’s written performance

warning on the common area copier (invasion of privacy); and

continuously yells at Emma in department-wide meetings, in the hallway and on the phone (intentional affliction of emotional stress).


So…So…Emma went to see Henry HR, and claimed she was suffering from a psychiatric

injury from her bullying boss (workers’ compensation and FMLA),

wants an accommodation (ADA), showed him evidence Brenda changed her time

sheets and is owed overtime for the past 18 months (FLSA/state wage and hour violations – penalties!),


And then…And then…Emma said she informed Brenda she was pregnant and was

told she would not get a promotion because she is “a breeder” (gender and pregnancy discrimination),

after she complained in the company newsletter about her denial of promotion, Brenda changed her work hours, OT was denied, she was excluded from training and was the only one in the department who didn’t receive a bonus (retaliation)


Finally…Finally…

Emma whimpered that she can no longer sleep, has stomach

ailments and is now addicted to anti-depressants (more intentional infliction of emotional distress), and therefore

feels she has no choice but to resign (constructive discharge)


Tips and Tools to Tips and Tools to Stop / Prevent BullyingStop / Prevent Bullying


Be ProactiveYour Culture:

Is respect a core value? Limit hierarchy / encourage

transparent hierarchy Teach / reward deliberate acts of

kindness / decency Inclusive vs. exclusive Are there practices that allow bullies

to thrive?


Be Proactive Zero tolerance for bullying must start at top

levels of management Who is on notice?

Walk the talk – DON’T REWARD BAD BEHAVIOR

“No jerks at work” rule What words do you use to identify inappropriate

behavior? Are bullies publicly rewarded?


Be ProactiveBe ProactiveHave a policy!

Civility / Respect in the Workplace / Code of Conduct / Anti-Bullying

Caution: Don’t have a policy if you don’tt plan on following it!

Accountability Tie all aspects of conduct to financial

rewards / evaluations / career advancementKeep track of turnover statistics by

department, manager and unit


Thank you!Connect with me!

LinkedIn: http://www.linkedin.com/in/allisonwestesqsphr

Twitter: https://twitter.com/#!/AllisonWestEsqBlog:

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the top hr risks you can't ignore in a down economy - how to protect yourself

Documents

familyc copyright

carefulc copyright

knowc copyright

team leadc copyright

particular protected

protected persons

form of sex discrimination

racial slurs