Harassment in the Headlines, Employers in the Headlights?

By Attorney Brian G. Formella

It is hard to ignore the daily dose of headlines that assert new allegations of sexual harassment or abuse in American society. While the problem of sexual harassment may be analyzed on many levels – personal, societal, historical, cultural, to name a few – sound legal analysis must not be overlooked by employers and employees when considering specific workplace situations.

When sex harassment occurs in in an employment setting, the conduct is likely addressed by Wisconsin and federal law.  Some forms of harassment may suggest criminal repercussions, although many forms of sexual harassment may not be considered a crime, depending on circumstances.

While all bad behavior in the workplace is inappropriate, not all inappropriate behavior may be contrary to state and federal laws.  Inappropriate conduct may not merely be illegal, it may be bad for business, including lowering employee morale.  The Equal Employment Opportunity Commission (EEOC) states that “workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm,” all of which is a drag on productivity.  (Select Task Force on the Study of Harassment in the Workplace; June 2016.)

Given the wide range of sexually inappropriate conduct, it behooves employers and employees to know the law.  Sex harassment is a form of unlawful discrimination based on sex.  Wisconsin defines discrimination because of sex to include implicitly or explicitly making or permitting acquiescence and/or submission to sexual harassment a term or condition of employment.  It is unlawful for an employer to permit conduct that has “the purpose or effect of substantially interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment.”  Substantial interference with an employee’s work performance or creation of an intimidating, hostile or offensive work environment may be established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct to be sufficiently severe or pervasive to interfere substantially with the person’s work performance or to create an intimidating, hostile or offensive work environment.  Usually the offensive conduct must be unwelcome for the conduct to be deemed unlawful under Wisconsin law.

Federal law is similar to Wisconsin law.  Wisconsin law applies to any employer with one or more employees; federal law applies to employers with 15 or more employees.

What should employers do to protect themselves against conduct by employees that may lead to harassment complaints?

1. Review your harassment policy to make sure it is up-to-date and has been recently communicated to your employees.

2. Conduct harassment training for management and non-management employees if you have not done so within the past year. The EEOC recommends that the training be live and interactive, if possible, or computer-based and interactive if live training is not possible.

3. If applicable, conduct appropriate harassment training for your organization’s board of directors.

4. Analyze whether your organization has been unintentionally tolerating or ignoring an employee who has a reputation for engaging in inappropriate behavior.

5. If the allegations of inappropriate behavior or harassment in your organization are widespread or involve someone high up in the organization, consider outside legal counsel to assist with your investigation. Outside counsel will be able to help you analyze legally sound investigation techniques and what, if any, remedial action should be taken.

In conclusion, it is important to recognize that bad behavior is bad for business, whether or not the conduct is against the law.  Consult with your legal advisor to review whether your harassment policies are up to date and whether key employees in your company should have moral turpitude clauses added to their employment agreements (when there are such employment agreements) to assist the employer in terminating employees who are behaving poorly, even if their conduct does not rise to the level of unlawful harassment under state or federal law.  Seek legal advice promptly if you suspect behavior that may violate state or federal harassment laws.


Wisconsin Fair Employment Act & the ADA

What can Wisconsin Employers Learn From an Employer in Churubusco, Indiana (Pop. 1,800)?

Wisconsin employers should be aware of the root cause of a lawsuit that led to a settlement between the U.S. Equal Employment Opportunity Commission (EEOC) and an Indiana employer. The EEOC is the federal agency that enforces the Americans with Disabilities Act (ADA). Like the Wisconsin Fair Employment Act, the ADA provides certain protections to employees with disabilities.

The EEOC started a lawsuit against an Indiana employer that resulted in a settlement that requires the employer to pay a job applicant thousands of dollars. The employer is located in Churubusco, Indiana, a town with a population of about 1,800 people.

According to the EEOC’s lawsuit, the job applicant, an experienced and qualified machinist, applied and interviewed for a machinist position. Upon completion of the interview, the employer extended a job offer conditioned on the applicant passing a physical exam. The employer later withdrew the offer because the exam report disclosed a possible vision impairment related to a congenital eye condition. During the litigation process, the parties’ expert ophthalmologists agreed that the job applicant had normal vision.

The EEOC maintained that withdrawing a job offer based on unsubstantiated stereotypical beliefs about a medical condition violates the ADA, which prohibits discrimination based on disability or perceived disability. The EEOC filed suit in federal court to prove its point.

The EEOC and the employer reached a consent decree in March that requires the company to pay the applicant $35,000. The employer also agreed to require its human resources supervisors, managers and business unit managers to attend a training seminar on disability discrimination. The employer must also maintain a disability policy, post a notice informing employees that federal law prohibits discrimination, and report to the EEOC over a five-year period in instances when it withdraws a job offer based on the results of its post-offer physical exam.

“This settlement demonstrates that all employers, even those who are the main employer in a small town, must abide by federal anti-discrimination law,” said Kenneth L. Bird, regional attorney of the EEOC’s Indianapolis District Office.

What are the lessons for Wisconsin employers?

  • First, be aware that even employers in small communities are not beyond the reach of the EEOC.
  • Second, know that both federal and Wisconsin law set guidelines against discrimination based on disability, perceived disabilities and stereotypes of disabilities in the workplace.
  • Third, although post-offer physical exams are allowable in many instances, withdrawal of an offer because of a perceived disability may violate federal or Wisconsin law.
  • Fourth, it is important that those responsible for hiring decisions are fully trained and knowledgeable about federal and state laws that affect hiring practices in the workplace.

For more information, contact your Anderson O’Brien attorney for an in-depth analysis covering compliance with all employment-related laws.

Social Media, Your Employees and Your Business

Court Holds that Discharge of Employees for Facebook “Likes” was Unlawful

Many employers are unaware that the National Labor Relations Act may apply to their places of employment, even if the workforce is not unionized. For example, Section 7 of the NLRA guarantees that employees have the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .” The NLRA also prohibits employers from interfering with, restraining or coercing employees in the exercise of these rights.

Notwithstanding employees’ rights to engage in concerted activity, employers generally have a right to prevent disparagement of their services or products. They also have a right to protect the reputation of their businesses. Thus, there is often tension between employees’ legal rights and the interest of the employer to prevent disparagement and protect business reputation.

The National Labor Relations Board (NLRB) and federal courts generally hold that employee communications are not protected under the NLRA if the criticisms made to the public are disconnected from any ongoing labor dispute and are sufficiently defamatory. Malicious comments by employees that are made with “knowledge of [their] falsity or with reckless disregard of whether [they] are true or false” are not protected.

In the case of Triple Play Sports Bar & Grille, the employer appealed the NLRB’s finding that Triple Play violated the NLRA for terminating employees who had used social media to disparage the employer’s business. The court reiterated that an employee’s Section 7 rights must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of the business. An employee’s communications with the public may lose the protection of the NLRA if they are sufficiently disloyal or defamatory. However, the mere fact that an employee’s statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue.

The conduct at issue in Triple Play was one employee’s Facebook “like” of another employee’s statement: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” A third employee wrote “I owe too. Such an As****e.”

The NLRB found that the Facebook activity in this case was “concerted” under the law because it involved three current employees and was “part of an ongoing sequence of discussions that began in the workplace about Triple Play’s calculation of employees’ tax withholdings.” The board also found that the Facebook activity was protected because the discussion concerned workplace complaints about tax liabilities.

The Federal Court of Appeals for the Second Circuit then reviewed whether the Facebook activity was “so disloyal or defamatory as to lose the protection of the Act.” The NLRB had found that there was no basis for determining that the employees’ statements were “maliciously untrue.”

The federal court noted that “almost all Facebook posts by employees have at least some potential to be viewed by customers.” But that fact alone is not a basis for an employer’s objection. The court further reasoned that the NLRA is violated if an employer’s internet or blocking policy would reasonably tend to chill employees in the exercise of their Section 7 rights. The inquiry must analyze whether “employees would reasonably construe the language to prohibit Section 7 activity.”

Conclusion and Guidance:
The NLRA’s balance between the employees’ right to engage in certain forms of concerted activity (even in a non-unionized work setting) and an employer’s interest in preventing disparagement of the business requires employers to walk a legal tightrope without reliance on their human intuition. In other words, while human intuition may suggest that an employer may discipline or terminate an employee who speaks ill of that employer, the NLRA grants significant rights to employees to engage in concerted activity. Human intuition may be a poor guide for employers when addressing disparaging statements made by employees through social media activity. Employers should approach discipline and discharge of employees for such conduct very carefully. They should formulate and review their internet/blocking policies to make sure that they do not violate the standards for concerted activities that are recognized under the NLRA. Finally, they should review with their attorney whether the employees’ statements go beyond what the law allows.

Does the NLRA Affect You or Your Business?

While Wisconsin becoming the nation’s 25th state to enact “right to work” legislation has made headlines, that legislation affects private-sector unionized workplaces only. Many employers may be unaware, however, that the National Labor Relations Act (NLRA) may regulate a place of employment, even if that workplace is not unionized.

The NLRA protects the rights of many private-sector employees to engage in concerted activity, with or without a union, when such activity is undertaken with respect to wages and working conditions, or to otherwise engage in concerted activity for mutual aid or protection in the workplace. That right is unknown to many employers. Employers may wrongly conclude that because they do not have a unionized workforce, they do not fall under the umbrella of the NLRA. Yet, the National Labor Relations Board, which generally enforces the NLRA, has become increasingly active in issuing rules and guidance that affect many employers in non-unionized workplaces. The risk to the unwary employer is that it may enact policies or procedures that violate the NLRA, subjecting the employer to complaints, actions, fines and penalties before the NLRB.

The NLRB takes a very protective view of the general right of all employees to engage in protected concerted activity for mutual aid and protection concerning pay and working conditions, whether or not the workplace is unionized. The NLRB has been active recently in finding that various employer policies unreasonably chill the employees’ exercise of such protected activity, at least in the estimation of the NLRB.

How can you begin to answer the question of whether your business is subject to the NLRA?
Here is a link that will get you started in determining whether the law applies to you: https://www.nlrb.gov/rights-we-protect/jurisdictional-standards. As an example, employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more. Shopping centers and office buildings have a lower threshold of $100,000 per year. For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state or purchased by the employer from out of state. The Board takes jurisdiction when such annual inflow or outflow is at least $50,000. Note that employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities, or prepare commodities for delivery are excluded from NLRA jurisdiction.

As an Employer, what should you do to not run afoul of the NLRA?
First, understand that the employee protections under the NLRA may apply to you and your business, even though your workforce is not unionized. Next, understand that the NLRB has been particularly active of late in issuing guidance to employers in the development of workplace policies. In particular, the NLRB has been focusing on social media policies and handbook policies in general, with a strict eye to determine whether any of the employer’s policies unacceptably chill the employees’ right to engage in concerted activity for mutual aid or protection. In subsequent articles, we will explore recent developments in the context of employer handbook policies recently found by the General Counsel of the NLRB to be unlawful.

“Security Check” Time is Not Necessarily Paid Time

Ordinarily, an employer must pay wages to an employee for all work performed by the employee. However, not all time that an employee is at his or her workplace is compensable time, according to state and federal law. For example, the following activities are not compensable:

(1) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform; and

(2) Activities which are preliminary or postliminary to the principal activity or activities, which occur either prior to the time or on any particular work day at which such employee commences, or subsequent to the time on any particular work day at which he or she ceases such principal activity or activities.

In Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court considered whether time expended by employees following the end of a work shift to go through a security checkpoint is compensable. In other words, the Supreme Court considered whether such security checks are activities that are preliminary or postliminary to the principal activity or activities of the job itself.

In this case, two employees of Integrity Staffing, a subcontractor for Amazon.com, alleged that they were entitled to wages for the time spent waiting to undergo security screenings following their work shifts. The screenings were intended to thwart employee theft of products. During the screening process, employees removed items such as wallets, keys and belts from their bodies and passed through metal detectors. Such screening time amounted to roughly 25 minutes each day. The employees argued that more scanners could have been installed to reduce the waiting time, and that because the screenings were conducted to prevent employee theft, the employees were entitled to wages for such screening time.

In a 9-0 decision, the Supreme Court held that the security screenings in this case were non-compensable. In making that determination, Justice Thomas wrote that such screenings were not the principal activity or activities that the employees were employed to perform. He reasoned that the employer did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipping to Amazon customers. The Court also concluded that the security screenings were not “integral and dispensable” to the employees’ duties as warehouse workers.

The opinion illustrates that it is erroneous to focus solely on whether the employer required a particular activity (like security screenings) to determine whether time at the workplace is compensable. Rather, the test for compensability is whether the activity is tied to the productive work that the employee is employed to perform.

In other cases, the consideration of such preliminary or postliminary activities have caused the Supreme Court to reach varying outcomes regarding compensability. For example, the Supreme Court has held that the time that battery plant employees spend showering and changing clothes is compensable because the chemicals in the plant are toxic to human beings, and the showering/changing is integrally related to that work. Similarly, the time that meat packer employees spend sharpening their knives (because dull knives would slow down production on the assembly line) was compensable time to the meat packer employees.

By contrast, the Supreme Court has held that the time that poultry plant employees spend waiting to don protective gear was not compensable because such donning was deemed to be not integrally related to the production on the assembly line.

Upshot: What guidance do these cases offer to employers who want to fairly compensate their employees, but on the other hand, do not want to pay for time that is not compensable? Consider whether the activity is integral and indispensable to the principal activities that an employee is employed to perform. That analysis itself is not necessarily clear cut. Consider reviewing your conclusions with professionals in the wage and hour field who are aware of relevant court decisions in this area, since the outcome tends to depend on specific facts and circumstances. The wrong decision by the employer regarding compensability could lead to lawsuits and back pay, penalties and attorney fees.

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