Silencing the Lambs: Weighing the Legal Cost of Confidentiality Requirements During Harassment Investigations

 

Recently we have been fielding questions from clients concerned with protecting their reputation in the midst of a harassment investigation. Specifically, when a company receives a complaint of workplace harassment they often want the matter to be kept as quiet as possible, so as to avoid the rash of bad publicity caused by the ubiquitous news reporting on the subject of sexual harassment. While this approach is understandable, especially in light of the fact that 68% of EEOC charges in fiscal 2017 were dismissed with a finding of “no reasonable cause,” you must keep in mind that there are currently prohibitions in place that prevent employers from doing so legally.

Section 7 of the National Labor Relations Act (“NLRA”) prevents employers from chilling employee rights to discuss wages, hours, and working conditions among one another. While the NLRA is mostly thought of as applying to unionized workplaces, this is actually a misnomer, as it governs employee rights in both organized and non-union settings alike. Indeed, the very issue of employer confidentiality requirements was analyzed in the Board’s 2015 decision in Banner Health System, 362 NLRB No. 137 (June 26, 2015). In that case, the Board held that it was a violation of the NLRA to require an employee who is subject of an internal investigation to refrain from discussing the investigation publicly except where the employer has a “legitimate business justification” for doing so.

Before you react dismissively to the aforementioned exception given the logical conclusion that saving company reputation until the results of the investigation are complete is obviously legitimate, keep in mind that Banner provided a specific list of conditions that it found were legitimate. Those conditions included: (1) witnesses needing protection; (2) evidence in danger of being destroyed; (3) testimony in danger of being fabricated; or (4) the need to prevent a cover-up.

While it was assumed (correctly) that a shift to a Republican President of the United States would relax burdens on employers that were put in place during the Obama administration, the Board analyzed this issue yet again on February 2, 2018 in Costco Wholesale Corp, Case 05-CA-169958 (February 2, 2018) and reaffirmed the Banner decision, again holding that Costco violated the NLRA when it directed an employee to refrain from discussing the ongoing investigation.

The takeaway from Banner and Costco is employers need to be very careful when making decisions that seem logical due to the far-reaching implications of the NLRA. Many HR professionals and even employment lawyers often interpret how heavy the influence of traditional labor law is on many of the issues we are facing with respect to harassment and discrimination today. For this reason we recommend you conduct training for your managers and even upper management to ensure that you are complying with the NLRA when conducting investigations and handing down employee discipline.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content. 



Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus, and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio

 

The Cultural Conundrum: Syntrio’s 3 part Webinar Series on Sexual Harassment in the Workplace

 

The Cultural Conundrum: Syntrio’s 3 part Webinar Series on Sexual Harassment in the Workplace

As 2018 moves into its second month we are seeing no slowdown in reports of sexual harassment in the workplace and in the news. More and more women (and men) are feeling empowered to tell their stories. Understanding this fact, and aware of our role in the prevention of harassment in the workplace, Syntrio has crafted a three-part webinar series entitled “The Cultural Conundrum.”

Part one of the webcast focused on awareness of cultural factors that indicate an increased risk of harassment. It is available for download (via registration) here. Yesterday’s program reviewed some of the high profile celebrity harassment cases of 2017 and analyzed cultural factors within a workplace such as “work hard play hard” that is statistically proven to lead to a greater number of harassment incidents in the workplace. By instructing learners that there are identifiable factors that can be changed, we examined the issues that managers need to watch out for, and how to always “keep your eyes and ears open.”

Part two of the series is entitled “The Reasonable Company: Prevention Tactics for Sexual Harassment.” The webinar is scheduled for March 6, 2018, at 1:00 p.m. ET, and registration is available now (link). The March 6 webinar will focus on the following tactics that can help reduce the number of incidents of sexual harassment in the workplace, and/or decrease the impact when an employee makes a complaint to management:

  • Making a reasonable response to a charge of harassment in your workplace;
  • Adopting and adapting anti-harassment policies to speak to the modern employee; and
  • The role of the manager in investigation and prevention of sexual harassment.

Part three of the series is entitled “Maintaining a Harassment-Free Workplace.” This webinar is tentatively scheduled for April 10, 2018, at 1:00 p.m. ET, and registration will be available following part 2, on March 6. Syntrio’s maintenance webinar will not only summarize our entire continuum program but will explore proven methods of keeping your workplace harassment-free.  Among the topics to be covered include:

  • Crafting a clear plan of action for employees to assist in the company’s goals;
  • Establishing transparency within the organization; and
  • Methods of regular training that will engage and impact your managers and employees.

Syntrio cordially invites you to be a part of our program and looks forward to having you in attendance at our upcoming webcasts!

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of conflicts of interest within the organization. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio

 

EEOC Releases 2017 Litigation Statistics

 

EEOC Releases 2017 Litigation Statistics

The United States Equal Employment Opportunity Commission (“EEOC”) has released its fiscal year 2017 litigation statistics. For those of us involved in the employment discrimination and harassment compliance arena the annual report provides us with a “standings” table much like the standings we analyze so carefully when our favorite baseball team is in the heat of a pennant race. Unfortunately, instead of a pennant to hang in the rafters after a great baseball season all you get for contributing to these standings are a lot of headaches, bad press and lost dollars.

In fiscal 2017 there were 84,254 charges of discrimination (all types) filed by plaintiffs with the EEOC. This number was actually down from the 91,503 filed in fiscal 2016, but it is important to remember that the fiscal year ends in July, which was before the Harvey Weinstein allegations sparked the #MeToo movement towards lessening the fear of bringing allegations of sex discrimination and harassment to light.

Unsurprisingly, of the 84,254 discrimination charges, 41,097 alleged retaliation (48.8%). Retaliation is most commonly filed as an attached charge to another allegation of discrimination, so it is always likely to lead the pack when the statistics are released at this time each year. With the second half of 2017 being all about sexual harassment you can expect to see the retaliation numbers skyrocket yet again when the 2018 statistics are released this time next year.

Harassment charges also decreased overall in fiscal 2017, from 28,216 in fiscal 2016 to 26,978 in 2017. Of those harassment charges, 6,696 charges of sexual harassment were filed out of 12,428 charges of sex-based harassment (including gender identity, gender expression, and sexual orientation). The math shows that sex-based harassment is an equal problem to the more traditional sexual harassment, and should not be ignored. Both numbers were down slightly from fiscal 2016, but as always, we should take the gains with a grain of salt given the explosive headlines in the second half of calendar 2017.

It is also important to discuss race and religious discrimination and harassment, as both areas make up a large portion of EEOC investigation and litigation. There were 28,528 charges of race discrimination filed in 2017 and 9,009 charges of racial harassment. There were also 3,436 charges of religious-based discrimination and harassment. Both numbers were again slightly down from 2016. Nevertheless, while we are giving significant press to sexual harassment we need to keep squarely in mind that racial harassment charges were (and usually are) 33% more common than traditional sexual harassment charges. This is something to think about when formulating your employment law compliance plan of attack for the coming year.

Although the overall and individual category charge numbers are down, indicating that our training and prevention programs are working, we cannot stress enough that 84,254 charges of discrimination and harassment are far too many. You also must remember that the 84,000+ charges do not include those cases filed and investigated via state fair employment agencies. In states like California and New York where the state fair employment agency handles much of the employment discrimination filings, we are seeing numbers that rival the rest of the country’s filings at the federal level.

Syntrio strives to continue fighting the harassment and discrimination problems we face in this country by providing quality e-learning products for companies of all sizes. We do not settle for what we are doing, and constantly strive to keep tailoring and improving our products to match the needs of this ever-changing area of law. We encourage you to contact us to discuss employment law solutions for your business and to continue the discussion of EEOC and other fair employment charges with us at your convenience.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of conflicts of interest within the organization. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content.


Contact www.syntrio.com for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on corporate compliance that impact your company.


Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio