Are Unethical Practices Creating Hostility at Your Place of Business?

Fear, bullying and mistrust are frequent sources of employee dissatisfaction in today’s workplace. All of these are workplace problems that lead to lawsuits when employees are disciplined, terminated, or voluntarily leave a company’s employ. Workplace culture is one of the most scrutinized aspects of business today, yet managers and executives alike frequently ignore it. Indeed, if the bottom line looks healthy the business must be in good shape, right? Wrong.

Discrimination and Bullying is a Serious Problem

Behavior such as discrimination and bullying is frequently a sign of wider issues within the business that need to be examined. By eliminating non-compliant behavior such as privacy issues and discrimination from the office culture you can reduce the likelihood that an employee will be compelled to sue upon his or her departure from the company.

Unethical practices have a variety of sources, such as a desire to cut costs, management’s distrust of employee usage of company property, competition from similar businesses in the marketplace, and a desire to cover up mistakes. All businesses face these issues, but the ones that take proactive measures to improve compliance and business ethics are the ones who are staying out of court and moving forward in 2015 and beyond.

In addition to creating a culture of fear and negative employee perception, poor ethical practices like the ones discussed above can lead to employee infighting and significant distractions from the tasks at hand. When employees are concerned that their privacy rights are being violated or that they are being singled out for discriminatory reasons, they are far less likely to focus on their job-related duties and more likely to waste time searching for another job out of fear of losing the one they already have. Combine this with lost productivity in employees discussing the issues with one another and there is a real problem that needs to be addressed.

Trust in the company impacts morale directly. The best way to improve trust and corporate culture is to train managers on compliant business practices from the top down. By doing so, managers will make employees feel confident that there is an open-door policy whereby they can report problems to their supervisor without the fear of repercussions from the company. Because retaliation is one of the largest types of employment lawsuits facing companies today, improvement in culture can lead to big savings in litigation costs.

The bottom line is companies need to take a proactive approach to ensure that their managers have the information necessary to comply with the high volume of employment laws and ethical issues facing modern businesses. Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 to discuss your compliance efforts and any issues that may be arising within your company.

 

Most Pressing Human Resources Risks for 2014 and Beyond

Synthesis of the federal litigation statistics, EEOC charge data, ethics hotline statistics, and employer surveys shows that the following areas are the greatest employer litigation fears in 2014 and going forward:

  • Discrimination and harassment (including retaliation)
  • Wage and hour issues
  • Wrongful termination claims
  • Leaves of absence
  • Accommodation of disabilities

Lawsuits and administrative charges often contain allegations of varying types, which add up to an expensive and time consuming mess for employers. Again, risk reduction is possible through the implementation of a proper compliance program including training for managers and employees.

As bad as the statistics in the federal courts and EEOC are, they only tell half the story. This is because many states have enacted employee-friendly laws with respect to discrimination and harassment, wrongful termination, and wage and hour issues. These state laws reach far beyond the umbrella of the corresponding federal laws, and can be troubling for employers.

As you will see, certain states are greater hotbeds for employment-related litigation and therefore require even further specific management training to reduce the likelihood that your company will be sued.

Top Five Riskiest US Geographic Territories for Employee Litigation

Hiscox Insurance recently conducted a study into the states with the largest number of employment litigation related insurance claims. While some of the locales were somewhat obvious, other locations in the traditionally employer-friendly south have become litigation hotbeds.

The following states rank well above average in terms of employer claims against Employment Practices Liability Insurance Policies:

risk-chart

 

 

 

 









According to the Hiscox study, on average, a U.S.-based business with at least 10 employees has a 12.5 percent chance of having an employment liability charge filed against it. This is an incredibly high number that is only growing, and is significantly larger in the states enumerated above. For example, California employers are 42 percent more likely to be sued for an employment-related charge. What it means is that at some point in the future your business is very likely to get sued, even if it is located outside one of the five “hot zones.”

State laws have a significant impact on risk. Simply stated, some states have laws that are more favorable to employees than others. For example, the employee-friendly nature of California law in the area employment discrimination may contribute to the high charge frequency in the state. Discrimination cases filed at the state level in California are brought under the Fair Employment and Housing Act (FEHA), which covers any company with five employees, versus a 15-employee minimum for cases brought under Title VII of the Civil Rights Act of 1964.

Damages Can Be Higher in State Court

Compensatory and punitive damages under federal law have statutory caps in many circumstances. Conversely, many state employment laws impose no damage ceilings, which makes an adverse verdict a potentially catastrophic situation for a business. Moreover, plaintiff’s attorneys are well schooled in damages laws, and will use them to their advantage when negotiating a settlement. Therefore, employers in high-risk states must pay even greater attention to the compliance training practices implemented within their workforces to ensure that managers and employees are adequately trained regarding discrimination, harassment and retaliation. Employers also must formulate and implement policies to prevent unlawful workplace practices.

Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 for a discussion on how we can help you and your business.

 

California Govenor Signs Bill Requiring Education on Abusive Conduct in the Workplace

As many in the Human Resources field are undoubtedly aware, California Governor Jerry Brown recently signed into law Assembly Bill 2053, which adds a new educational requirement to the existing training required by Assembly Bill 1825 (commonly known as California’s Harassment Training Law).

Under existing California Law, employers with 50 or more employees must provide at least two hours of sexual harassment training to supervisors, and the requirements of the law are set forth in Government Code section 12950.1.

Assembly Bill 2053, which takes effect January 1, 2015, amends Government Code section 12950.1, and requires employers who are subject to the sexual harassment law to continue complying with the requirements of the law, but also “include prevention of abusive conduct as a component of the training and education . . .”

What is “abusive” conduct according to AB 2053?

AB 2053 defines “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Abusive Conduct may include the following:

  • Verbally abusing someone by yelling or screaming at them
  • Repeated demeaning and degrading verbal remarks that "put down" or make employees feel subhuman
  • Humiliating others through public criticism, gossip or ridicule
  • Denigrating the work standards or achievements of others
  •  Intentionally destroying an employee’s work product such that the individual receives punishment or reprimand
  •  Work sabotage through misinformation or by giving impossible deadlines
  •  Not giving credit
  •  Isolation from opportunities, information, and interaction with others
  •  Physical contact with a co-worker such as pushing, blocking, or hitting, etc.
  •  Throwing books, chairs, stacks of paper, or other “conduct” that a reasonable person would find intimidating
  •  Stealing files, personal affects, or office supplies

Importantly, the definition specifically states that unless the conduct is especially severe and egregious, a single act does not usually constitute abusive conduct.

Does the New Law Create a Cause of Action for Abusive Conduct?

No. While allowing abusive conduct to persist within the workplace may be a poor management strategy or bad for business, nothing in the new law makes this type of conduct illegal at this time. We cannot predict whether there will be a law in the coming years that will indeed create a cause of action for abusive conduct (and the language in the law certainly would allow one to speculate that this is the case) For the time being, employers subject to AB 1825 must merely educate their supervisors as to what abusive conduct is (and ideally to prevent it).

From a practical perspective it will be difficult (albeit not impossible given the nature of some judges within the state and federal courts) for a court to draw the line between what is and is not abusive conduct. However, what is likely is that those businesses who choose not to implement the educational requirement of AB 2053 could be subject to a cause of action similar to a California “failure to prevent” harassment claim. We stress that at this time there is nothing on the books creating this sort of action against the employer, but it is not a stretch to see how the plaintiff’s bar will use this sort of statute to their advantage.

Finally, although the new law is unclear as to whether employers who are current on their mandated California sexual harassment training must re-train to include information about abusive conduct in the workplace, it is clear that any employers planning on conducting sexual harassment training going forward should be sure to include this information just to remain on the safe side.

Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 for a discussion on how we can help you and your business.

 

Three Things You Might Not Know About Title VII Religious Discrimination

Three Things You Might Not Know About Title VII Religious Discrimination

Title VII of the Civil Rights Act of 1964 prohibits discrimination against an applicant or employee on the basis of his or her religious beliefs. The Act also requires employers to accommodate employees’ religious practices.

The following paragraphs briefly discuss surprising situations, facts, potential problems, and misnomers about Title VII’s prohibition on religious discrimination and corresponding accommodation requirement. Although some may or seem implausible and impractical, they are based on real cases and/or regulatory and administrative guidance.

1. Evidence that an Employer is Recruiting Employees Based on their Religious Beliefs is an Instance of Discrimination Based on Religion

Religious discrimination occurs when an applicant or employee is treated unfavorably due to his or her religious beliefs. Application of this principle is typically seen in the context of an employee being terminated or not offered a job because he or she is Christian, Muslim, Hindu, etc. However, it is important to consider recruitment practices and how they are perceived. The EEOC lists an example of a Hindu gas station owner who advertises a position at the Hindu temple and tells his Hindu friends to recruit only Hindus for the job. By limiting the recruitment to just Hindus, the gas station owner is engaging in religious discrimination.

2. Failing to Hire an Employee Due to Fears About his or her Perception within the Current Workforce is Religious Discrimination

Employers want to maintain high morale within the workplace. Naturally, hiring managers keep this at the forefront of their minds when making decisions. However, taking into account someone’s social media posts or past writings about religion and failing to hire them because they would not be a “fit” is religious discrimination.

If a hiring manager reviews information about an applicant that reveals he wrote a paper advocating atheism, for example, then decides not to hire him (even though he was the most qualified applicant) for fear he would not fit in amongst a group of hardcore Christians within the department, this is religious discrimination. As previously discussed, just because it is the practical thing to do, does not make it legal.

3. Unique Beliefs Can be Religious

The EEOC and federal courts have granted Title VII protection to many unorthodox beliefs, so long as they are “sincerely held” (subject to many exceptions of course). However, in a surprising number of cases, courts have denied summary judgment, holding that an unorthodox belief was “religious” within the meaning of Title VII.

For example, when a member of an ancient Mufasan religion (who publicly acknowledges there are less than ten members) loyally follows the Mufasa faith’s concept (including the deity Mufasa the Lion and tribal practices, which include the tattooing of one’s arms with cryptic messages), and his employer asks him to cover the tattoos even after the employee has stated that a tenet of the religion is having the tattoos exposed to the gods, the employer is in violation of Title VII, even though the employee’s religion is practiced by such a small number of followers.

These three examples are a small sampling of the unique situations that can occur within the realm of Title VII religious discrimination and accommodation. Although it is impossible to discuss every situation that may or may not violate Title VII, it is essential to ensure that managers and employees are educated on the scope of religious protections and the ambiguities of religious discrimination laws. Check back periodically for further analysis and food for thought on this fascinating area of the law.

Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 for a discussion on how we can help you and your business.

 

Age Discrimination and the EEOC

The United States Equal Employment Opportunity Commission (“EEOC”) recently filed a lawsuit on behalf of Nancy Washington, a 66 year-old woman who Harold Washington College failed to hire, allegedly because of her age. Ms. Sullivan worked as an adjunct professor in the English department for five years before she applied for a full-time position. An EEOC investigation revealed that Ms. Sullivan had an excellent record as an adjunct professor and quality recommendations from her peers, yet was still passed over in favor of younger candidates.

Age Discrimination Complaints Still High

In addition to its role as a federal investigatory agency for employment discrimination claims, the EEOC has an enforcement arm as well. In the majority of cases however, the EEOC tries to determine whether there is a cause of action for the employee to file a private lawsuit if their employer refuses to settle the claim.

In fiscal year 2013, the EEOC reported receiving 21,396 employee charges of age discrimination. This is a decline from the record-high of the more than 24,000, received in fiscal year 2008, but is still a staggering number that costs employers significant amounts of money.

Many older employees are reeling from the effects of age discrimination in the workforce. As the Chicago City College case study shows, well-qualified, older employees are frequently passed over for open positions in favor of younger candidates with the potential for longer tenures. This illegal workplace practice can yield costly results.

Age Discrimination Can be Confusing and Complex

Managers and HR professionals routinely reject older applicants or employees for being “overqualified” for certain positions. In today’s tightening job market, such discrimination can be devastating to older applicants seeking to remain in the workforce. An employer cannot refuse to hire an applicant simply out of a belief the applicant will be dissatisfied with job’s requirements. Courts routinely hold that the term “overqualified” is merely a veiled term for age discrimination.

Anti-Discrimination Training

Since the EEOC filed a lawsuit against the Chicago City College system on Ms. Sullivan’s behalf, the College will need to expend significant resources going forward. In addition to ensuring age-neutral policies in all aspects of employment, managers, supervisors and other school officials will need to be trained (or re-trained) to comply with the Age Discrimination in Employment Act (“ADEA”), Older Workers Benefits Protection Act (“OWBPA”), and other federal and state laws that address age discrimination. In this case, and many others, an ounce of effective prevention may have avoided a pound of expensive cure in the courts.

Syntrio, Inc. specializes in providing online Ethics and HR compliance training. Contact us today at 888-289-6670.