Supreme Court Backs Workers

The U.S. Supreme Court ruled 7-1 yesterday  in the case of Green v. Brennan that the statute of limitations for Title VII constructive discharge claim begins on the date of the employee’s notice of resignation, not on the date of the last alleged discriminatory act by the employer.

According to Fisher Phillips’ Melody Rayl,  the court’s decision is a “bad one” for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers.

“The question that confronted the Supreme Court is important because it goes directly to whether such constructive discharge claims are filed in a timely manner,” Rayl writes. “Prior to filing suit for discrimination under Title VII, employees must first file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days ‘after the alleged unlawful employment practice’ occurred, although the time is extended to as much as 300 days if the claim is also filed with a state or local agency authorized to investigate such claims.”

Further, Rayl writes, the Supreme Court’s decision now opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

Now may be a good time for some legal background, courtesy of Rayl:

What Is A “Constructive Discharge?”
In a claim for constructive discharge, a former employee accuses the employer of engaging in discriminatory or retaliatory conduct that makes the working conditions so intolerable that any reasonable person in the shoes of that employee would feel they have no choice but to quit. In other words, a constructive discharge means a worker is forced off the job by the employer.

The concept of constructive discharge is a sort of legal fiction, allowing workers who claim to have been subjected to particularly egregious workplace treatment, but who have not been fired, to nonetheless resign from the offensive work environment and preserve their right to seek damages in the form of lost wages and benefits.

While the ruling is plainly a win for employees on this front, Rayl notes there was one area of the ruling in which employers can take solace:

In the smallest of victories for employers, the Court did acknowledge the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

With respect to Green, the Court found the facts were not sufficiently developed to pinpoint precisely when his notice of resignation occurred. Thus, the Court remanded the case back to the Tenth Circuit to determine, as a factual matter, whether he gave notice of his resignation on the date he signed the settlement agreement or nearly two months later when he submitted his retirement paperwork.

All things considered, that’s a small victory for employers indeed.

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A ‘Love Letter to [all the Bad-Rapped] Managers’

Who hasn’t heard and read the reports in the last few years on the real reason employees leave their employers? Bad managers, right? 522472388 -- managerNo doubt anyone visiting this site has seen and heard them.

We’ve certainly written our fair share, from criticizing managers’ reluctance or inability to truly promote career development to pinpointing the need for managers to grow their big-data skills to lamenting the unhappiness and decimation of the middle-management ranks in general, which of course supports the theory that unhappy managers make for bad bosses.

Which might be precisely why this recent post by Maren Hogan on the HR Examiner site, My Love Letter to Managerscaught my eye, an eye that’s always on the lookout for something counterintuitive (warning, she doesn’t hold back on some of her descriptors). That or the fact that I am a manager, so a love letter to me … well … what’s not to like?

Counterintuitive does seem to be the operative word here, when you consider all that’s been said about retention and turnover, and the especially egregious part managers play. As Hogan puts it,

“Retention issues? It’s the manager’s fault.
Productivity problems? Blame the manager.
Engagement dipping? Someone get management in here!

Can this really be true? After all, many of these problems have roots in giant, macro issues. The economy, changing workforce dynamics, an always-on mentality spurred on by technology advances. It’s sort of simplistic to blame the manager, isn’t it?”

I especially like what she says about this mega-trend, if you will, of citing management as the reason people leave work, hate work, aren’t engaged and aren’t productive. She thinks this trend “could be part of a blame culture that has slowly seeped into our workforce over the past couple of decades.” In her words,

“Whether we’re blaming millennials for the faster pace and fancy [results-only-work-environment] perks, or blaming executives for the glaring inequality between them and us, or blaming managers for every issue in the workforce, very few seem to be stepping up to take personal accountability.”

She’s got some helpful suggestions for employees who might be prone to disparaging their managers, such as considering how they, themselves, might change the situation before blaming their direct supervisor; doing better and faster work if they don’t like what’s been assigned to them so they can prove they’re capable of taking on something more interesting; taking self-assessments of their most-productive times during the workday and building their reputations as team players; and even getting better at confronting difficult and destructive employees themselves, so managers aren’t blamed for failing to take action.

So why am I sharing this with you? Well, first, I kind of agree with Hogan that managers have taken a bad rap for far too long for the ills of corporate culture.  More importantly, though, I believe employers and their HR leaders could go a long way toward curing some of those ills by paying more attention to the workloads and expectations placed on their managers.

They might also consider committing serious capital to training all employees in personal accountability, starting with Hogan’s list above.

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NLRB May Raise Bar For Employers to Oust Unions

Companies seeking to oust a union that’s no longer supported by most workers could soon face a new obstacle.

Currently an employer may stop dealing with a union when a contract comes up for renewal. Management just needs objective evidence – typically a petition – that a majority of workers no longer support it. But the NLRB’s top lawyer wants to raise the bar companies must cross to withdraw recognition.

In a May 9 memo, National Labor Relations Board general counsel Richard F. Griffin Jr. instructs the agency’s regional directors to raise a new argument when companies unilaterally withdraw union recognition. He believes employers should first seek a formal decertification election — and continue to deal with the union until winning the ballot battle.

In the memo, GBallot-boxriffin contends this would be better for companies by eliminating uncertainty and lessening delay and litigation.

The current board law “has created peril for employers in determining whether there has been an actual loss of majority support for the incumbent union, has resulted in years of litigation over difficult evidentiary issues, and in a number of cases has delayed employees’ ability to effectuate their choice as to representation.”

The new standard, he contends, “will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support.”

But management-side labor lawyers generally see this as a move to strengthen the hand of unions by forcing companies to continue bargaining with a union that may no longer have much support.

And the NLRB could go along with Griffin, says one expert.

As long as three of the five board members are Obama appointees, “I think there is probably a good chance … the board would be receptive to the general counsel’s argument here,” said labor attorney Steven M. Swirsky, a member of the firm at Epstein Becker & Green in New York.

The current practice was set by the board 15 years ago in a case involving Levitz Furniture Co. Now Griffin is instructing regional offices to disregard that standard and issue unfair-labor-practice complaints in future cases where employers unilaterally withdraw recognition and unions file charges, Swirsky says. That would eventually bring his argument for raising the standard in front of the board for a ruling.

Over the last 10 years, employers have won 70 percent of employer-requested decertification elections, NLRB records show. But requiring those elections often will mean a lengthy series of labor complaints and appeals by the union – even if few workers support it – before companies can withdraw recognition, Swirsky says. And while that’s dragging on, a company is stuck.

“You freeze the status quo in many respects,” he says. “That can be harmful for employees, too.”

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Supreme Court Deals a Blow to the EEOC

The upshot of today’s U.S. Supreme Court unanimous ruling in favor of a trucking company in CRST Van Expedited Inc. v. EEOC is that a company can still be considered the prevailing party in a court case — and thus be eligible for reimbursement of its legal fees by the other party — even if it doesn’t win a favorable judgment on the merits of its argument.

CRST, a trucking company, had been awarded a record $4.7 million in legal fees against the Equal Employment Opportunity Commission by a trial court after a class action brought against the company by the EEOC on behalf of 154 female drivers was found to have been without merit. The EEOC’s suit had alleged that CRST allowed “severe and pervasive” sexual harassment against female drivers in its driver-training program. The case was later dismissed by the court because it found that the EEOC had failed to show a pattern or practice of discrimination, nor did it fully investigate the claims, find reasonable cause and attempt reconciliation prior to filing suit.

However, the 8th Circuit Court of Appeals vacated the $4.7 million award because the claims were dismissed without ruling on their merit and thus CRST was ineligible per Title VII of the 1964 Civil Rights Act, which grants attorney fee awards to “prevailing” defendants who can show the EEOC’s position was “unreasonable or frivolous.”

Writing for the court, Justice Anthony Kennedy said there was no indication that Congress had intended “that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on their merits.”

“It would make little sense if Congress’ policy of ‘sparing defendants from the cost of frivolous litigation’ depended on the distinction between merits-based and non-merits-based frivolity.”

The ruling sends the case back to the lower court for further review.

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The Cost of Not Accommodating Caregivers

Some employers “still aren’t getting it when it comes to discriminating against employees with family responsibilities.”

So says Joan C. Williams, founding director of the Center for WorkLife Law at the University of California, Hastings College of the Law, in a recent statement highlighting findings from a new UC Hastings study.

And, judging by some of the statistics found in said study, it’s hard to argue that she has a point.

The report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibilities discrimination cases that were filed in the United States between the years 2006 and 2015.  Report author Cynthia Thomas Calver looked at employees’ claims alleging discrimination based on their status as a pregnant woman, mother, father, or a caregiver for a sick or disabled family member or an aging or ill parent, and found a 269 percent increase in the number of such cases filed in that 10-year span, compared to the prior decade.

While you’re digesting that number, chew on these facts and figures to emerge from the UC Hastings report:

  • Claims for FRD have been filed in every U.S. state.
  • Cases involving eldercare have increased 650 percent in the last 10 years.
  • Pregnancy accommodation cases have gone up by 315 percent.
  • Though the number of claims remains small, suits in which an employer is alleged to have denied accommodations or discriminated against an employee because she was breastfeeding or needed to express milk during the workday has risen by 800 percent.
  • Male employees have brought 55 percent of spousal care cases, 39 percent of eldercare cases, 38 percent of FMLA cases and 28 percent of childcare cases.
  • A clear majority of employees are succeeding with family responsibilities discrimination suits, with workers winning 67 percent of the FRD claims that went to trial from ’06 to ’15.

Naturally, these claims are hitting American employers pretty hard in the wallet. FRD litigation cost U.S. companies $477 million over the past decade (compared to roughly $197 million from 1996 to 2005), according to the WorkLife Law report, which suggests that the actual amount is “likely to be significantly higher, as many settlements are confidential.” These figures “also fail to capture the ripple effects of discrimination, including employee attrition and related replacement costs, damage to the company’s public reputation and reductions in the morale and productivity of all employees.”

The report also lays out some steps for preventing family responsibilities discrimination within the organization, such as providing supervisor training, adopting anti-discrimination policies that include family responsibilities, activating HR-run oversight programs and ensuring that the company’s procedures for responding to employee complaints address FRD.

In the aforementioned statement, Calvert, a senior advisor to the Center for WorkLife Law, stresses the importance of adapting to America’s evolving workforce and families, and the cost of failing to do so.

“Until employers adjust to the realities of families with all adults in the paid workforce and a significant growth in the number of older Americans who need assistance from their adult working children, it’s unlikely we’ll see a decrease in the number of cases filed.”

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Getting Caught in the Drug Screen

There’s an interesting new story in the New York Times today about how employers are struggling to find a key demographic of the workforce: those who are able to pass a drug test.

From the NYT story:

All over the country, employers say they see a disturbing downside of tighter labor markets as they try to rebuild from the worst recession since the Depression: They are struggling to find workers who can pass a pre-employment drug test.

The hurdle, according to the story, “partly stems from the growing ubiquity of drug testing, at corporations with big human resources departments, in industries like trucking where testing is mandated by federal law for safety reasons, and increasingly at smaller companies.”

Data suggest employers’ difficulties “also reflect an increase in the use of drugs, especially marijuana — employers’ main gripe — and also heroin and other opioid drugs much in the news.”

Indeed, Quest Diagnostics, a national drug-testing service, documented an increase for a second consecutive year in the percentage of Americans who tested positive for illicit drugs — to 4.7 percent in 2014 from 4.3 percent in 2013. And 2013 was the first year in a decade to show an increase, the story notes.

But data on the scope of the problem is “sketchy,” the NYT notes, “because figures on job applicants who test positive for drugs miss the many people who simply skip tests they cannot pass.”

The story gets at an interesting question, but one that doesn’t necessarily get enough attention these days, likely due to all the other debates raging in the workplace: When does drug testing become more onerous than advantageous for an organization?

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Pawternity, Could it Happen Here?

A good bit of attention has been paid recently to a phenomenon taking shape across the pond.

521075238 -- petsIt seems a growing number of companies in the United Kingdom — mostly smaller start-ups — are beginning to offer their employees what’s being called pawternity leave; i.e., paid-time-off to bond with their new four-legged furry friends or tend to their old ones.

This piece that appeared on the appropriately-named website, “The Bark: Dog is My Co-Pilot,” mentions several employers that have gone this route — Mars Petcare, BitSol Solutions and Now What.

At Manchester-based IT company BitSol, company owner Greg Buchanan says pawternity is actually good for the bottom line, according to this piece in USA Today.

“You know, we are quite sympathetic to pets in the U.K.; we’re a pet-loving country,” he tells the paper. “Obviously we take it on a case-by-case [basis]. If somebody’s asking for time off for a goldfish, no, no — then it’s not quite what we set out for.”

He also cautions that “[i]f you do give time off for pawternity leave, you are limiting the number of people available to you.” However, he adds, “I believe morale of staff definitely improves and they actually want to work harder for you.”

The Bark piece puts the number of pet owners in the U.K. who have been offered time off to care for Fido or Fluffy at nearly one in 20. It also mentions that Mars Petcare, a pet-care company, was one of the first employers to institute a formal pawternity policy, now allowing its employees 10 hours of paid leave when adding a new pet to the family.

Based on his recent column on the U.K trend toward better treatment of its workers, I reached out to HRE‘s talent management columnist, Peter Cappelli (George W. Taylor professor of management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania in Philadelphia), to see if this four-legged phenomenon could happen here.

“I’d say the U.S. model of just giving people personal time for whatever is important to them makes more sense than trying to define legitimate reasons for leave,” he told me. But he did seem impressed with how far the Brits will go in their efforts to accommodate pet owners.

Personally, I have been thinking about getting a dog lately. And being single, I’m concerned about what will get chewed or stained while I’m at work. Not even sure the effort would be worth it without a benefit like this.

But …… moving to London seems like a pretty drastic solution.

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A Wake-Up Call for the Sleep Deprived

Several familiar themes emerged at Virgin Pulses’ 2016 Thrive Summit in Boston this week, including some we heard at HRE’s Health & Benefits Leadership Conference earlier this spring.

Arianna Huffington’s humorous and engaging keynote Tuesday afternoon on the topic of sleep deprivation was one that personally resonated with me. Maybe it had something do with the fact I was still struggling with jet lag, having just returned from a trip from Japan the weekend before?

Of course, you don’t need to be a rocket scientist to grasp the detrimental impact sleep deprivation can have on effectiveness and productivity. Studies have repeatedly shown the huge toll it can take on businesses, including one titled “Insomnia and the Performance of U.S. Workers: Results from the American Insomnia Survey” that put lost workplace productivity at around 11 days per employee—or the equivalent of $2,280 per employee. If you’re a business leader, figures like these, you would think, could lead to a few sleepless nights of your own.

Huffington, founder, president and editor-in-chief of the Huffington Post Media Group, touched on the problem of sleep deprivation in Thrive: The Third Metric to Redefining Success and Creating a Life of Well-Being, Wisdom, and Wonder. Most likely in the hopes of drawing more attention to this ever-important issue, she also came out with a new book last month dedicated to the subject titled The Sleep Revolution: Transforming Your Life, One Night at a Time. (As an attendee at the Thrive Summit, I received a complimentary copy, which I’m looking forward to giving a more thorough read.)

In her Thrive Summit talk, Huffington shared her own personal awakening, which involved pushing herself so hard nine years earlier that she collapsed and, in the process, broke her cheekbone. She noted that “you’re not successful when you find yourself in a pool of blood.”

After a series of doctor visits and testing, she said it was determined the cause of the fall wasn’t a brain tumor or heart condition, but was due to her not getting enough sleep.

“Sleep deprivation is the new smoking,” she said.

Despite noting that her talk would be apolitical, Huffington, a political commentary who regularly takes aim at the Republican Party, couldn’t refrain from taking a jab at the Republican Party’s “presumptive” nominee, who has, on occasion, boasted about the limited sleep he needs to get. That candidate, she said, seems to display all of the symptoms of a person who is sleep deprived: mood swings, bad judgement, etc.

Huffington said the science shows that people need seven to nine hours of sleep, not the three, four or five many are settling on—and employers and HR leaders need to do more to enable that to happen.

For starters, she said, business leaders need to end the practice of praising and rewarding those who never disconnect from their jobs. “When you congratulate people who work 24/7, it’s like congratulating them for coming to work drunk,” she said.

Huffington specifically praised the efforts of business leaders such as Amazon’s CEO and Founder Jeff Bezos and Microsoft CEO Satya Nadella, who have been ahead of the curve in talking about the value of getting eight hours of sleep a night. Other so-called “sleep evangelists” mentioned in The Sleep Revolution include Campbell Soup CEO Denise Morrison and Google Chairman Eric Schmidt.

There are a number of steps people can take to get “rekindle our romance with sleep,” Huffington said. She specifically emphasized the value of creating a ritual before going to bed. For her, that ritual includes disconnecting from all electronic devices roughly 30 minutes ahead of time and taking a hot bath in Epsom salts.

Whether it’s 30 minutes or something less, she said, “we need to wind down and put the day behind us.”

Of course, for those of us who aren’t getting enough sleep, changing our behavior is often easier said than done. So it probably wasn’t a coincidence that the program kicked off the following morning with a workshop titled “Behavior Change is a Skill,” conducted by BJ Fogg, director of the Persuasive Tech Lab at Stanford University.

The premise of his workshop was that people can learn to change their behaviors—that people can acquire skills for changing just as they can learn how to play a musical instrument or swim.

Or, I suppose for that matter, learn how to get a better night’s sleep.

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Can Sexual-Harassment Training Backfire?

An article in the British newspaper The Guardian has sparked new debate in HR circles over whether sexual-harassment training can cause more harm than good.

The article recounts research suggesting that training may make some men less sensitive, not more, to appropriate boundaries in the workplace. Among others quoted in the piece is Lauren Edelman, a law professor at the University of California, Berkeley :

“Sexual harassment training may, in fact, make it less likely that males will recognize situations that are harassing … Sexual harassment training may provoke backlash in males.”

Some of the research pointing in this direction is more than a decade old. One often-cited study from 2001 concluded that men who had training were less likely than those who didn’t to recognize or report sexual harassment.

But some research is more recent, suggesting the problem is not going away. In one 2012 study, a sociologist interviewed workers and sat in on training sessions. Justine E. Tinkler, now at the University of Georgia, concluded that they often resisted the message:

“Gender stereotypes are used to buttress perceptions that sexual-harassment laws threaten norms of interaction and status positions that men and women have an interest in maintaining.”

sexual harassment

Related research has found that sexual-harassment training can mostly inspire fear among workers.

This is a hot topic with many in the HR field. Many who weighed in online acknowledged the problem, but argued it’s less of an issue if the training is of high quality.

Writing in Slate, Nora Caplan-Bricker cites a 2013 study that, she says, “suggests that it is possible to teach people how to identify sexual harassment — and to convey how company policies treat it — without inciting a backlash effect.”

Studies suggest that training that lasts at least four hours, that is interactive and led by an expert or direct supervisor, rather than an HR specialist, are most effective, Caplan-Bricker writes.

Many employment lawyers seem to agree. One is Richard Cohen, a partner in the New York City office of FisherBroyles. He writes:

“After conducting my fair share of harassment trainings, and studying, critiquing and/or sitting in on numerous others, I come down on the side of those academics who believe that harassment training is helpful and productive when done right.”

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New Trade Secrets Law: The HR Angle

It’s incredibly rare these days for a proposed law to receive near-unanimous backing in the U.S. House and Senate but, by George, our nation’s politicians managed to pull off this miraculous feat recently, which culminated with President Obama affixing his signature yesterday to the Defend Trade Secrets Act.

The new law puts trade secrets on par with patents, copyrights and trademarks, which are already protected under federal law. The Defend Trade Secrets Act provides a “uniform set of rules for trade secret protection” throughout the United States (although it does not replace trade secret laws passed by individual states). The upshot is that companies whose trade secrets were violated in multiple states can now file suit in a federal court rather than trying to determine which state may (or may not) provide the best legal remedy.

Trade secret claims have long been a key component of employee non-compete agreement lawsuits, writes Chris Marquardt, a partner at Alston & Bird’s labor and employment law group. For this reason, the new federal law “not only gives employers another tool to protect their confidential business information, but will also likely shift many routine employment-agreement lawsuits into the federal court system,” he writes.

Employee non-compete agreements can vary widely from state to state and the new law is written in such a way as to recognize that “the statute should not override state laws” on such agreements, Marquardt writes. However, he adds, “only time will tell how broadly federal courts interpret the new law and how willing they are to use it to prevent employees from accepting new jobs in competition with a former employer.”

Brett Coburn, also a partner with Alston & Bird, writes that one of the less-frequently discussed aspects of the new law is one that will impact nearly all employers: “The law grants both criminal and civil immunity under both federal and state trade secrets laws to individuals who disclose a company’s trade secrets to the government” if the person has reason to suspect that a legal violation has occurred. It also requires employers to notify employees of this immunity “in any agreements that govern the use of trade secrets or other confidential information.”

To ensure compliance, Coburn writes, HR leaders and legal counsel will need to reexamine their company’s restrictive covenant and nondisclosure agreements, as well as policies regarding the protection of confidential information and employee whistleblower activities.

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