EEOC Posts Guidelines On Harassment

 I can't tell you how many times per week I have to tell people that harassment is not generally illegal. Bullying, general harassment because you're you, just being mean, are not illegal. If they were, I'd be a billionaire.

But some kinds of harassment are illegal. EEOC has posted guidelinesposted guidelines on what kinds of discriminatory harassment are illegal. Here are some key provisions:

Types of harassment: "All laws enforced by the EEOC prohibit workplace harassment that is based on a protected characteristic. The protected characteristics covered by the laws the EEOC enforces are race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older), and genetic information (including family medical history)."

When is harassment illegal: "To violate the law, harassment based on a protected characteristic must either:involve a change to the victim’s employment (e.g., an employee is fired, demoted, denied a promotion or transfer, reassigned, or receives reduced hours or pay because the employee rejected a supervisor’s sexual advances); or create a “hostile work environment”"

Examples of illegal harassment: EEOC gives these examples:

• saying or writing an ethnic, racial, or sex-based slur;
• forwarding an offensive or derogatory “joke” email;
• displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti); threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs;
• sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos;
• making comments based on stereotypes about older workers;
• mimicking a person’s disability;
• mocking a person’s accent;
• making fun of a person’s religious garments, jewelry, or displays;
• asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
• groping, touching, or otherwise physically assaulting a person;
• making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
• threatening a person’s job or offering preferential treatment in exchange for sexual favors.

I would add that bullies tend to pick on the weak and the different. Who's weak? Pregnant, disabled, and older employees. Who's different? Race, sex, national origin, color, religion, etc. So look at who the bully is targeting and you might find that they are indeed engaging in illegal harassment. 

Do they have to get it right?: No. If the employer assumes you are Muslim, Black, or have some other protected characteristic and are harassing you because of it, that's illegal

Association: If you're being harassed due to your association with someone with a protected characteristic, such as being married to a Hispanic or a person with a disability, that's illegal.

What is a hostile environment: It isn't easy to prove, but EEOC offers this:

A “hostile work environment” exists when harassment is so severe or frequent (called “pervasive” in the law) that a reasonable person in the employee’s position would find the situation to be abusive.

Each claim must be considered on a case-by-case basis and take into consideration all of the circumstances. Some general guidelines to consider include:

• A victim does not need to show that harassment was both severe and frequent – just one or the other.* Sometimes, the more severe the harassment, the less frequent it must be, and vice versa.
• One instance of very serious misconduct may be severe enough. For example, one instance of somebody touching an intimate body part, acting violently, or a supervisor using the n-word can be enough to violate the law.
• The harasser’s status at the employing organization can be important. Harassment by the company’s owner or the victim’s supervisor can sometimes carry more weight than similar behavior by a coworker or customer.
• The victim does not need to show that the harassment led to a change in employment, such as a demotion, reduction of hours or rate of pay, or denial of a promotion. Similarly, the complainant does not need to show that the harassment made them perform worse.

*I'm emphasizing this because management-side lawyers like to argue that it must be both severe and pervasive. That's obviously not the law but it needs to be said. Over and over. SMH

What must employers do: Employers are responsible for preventing and for quickly ending harassing behavior once they learn about it , even if the harassment has not yet been severe enough or frequent enough to create a hostile work environment. But they have to know about it, so report it! EEOC offers this: "An employer typically learns about potential harassment when:Somebody complains. The person who complains does not need to be the victim.

• An owner, manager, or supervisor witnesses the harassing conduct.
• The harassing conduct is so open and obvious that an owner, manager, or supervisor reasonably should have known what was happening."

These are just a few of the key points raised in this new guidance. It might help if you think you are being subjected to illegal harassment. When in doubt, talk to an employee-side employment lawyer in your state employee-side employment lawyer in your state about your rights.

Were You Harassed At Work? EEOC Issues New Guidance on Workplace Harassment

 I have to say this almost daily, and I'll say it again here: general harassment at work is not illegal. Harassment because you are you is not illegal. Bullying is not illegal. However, bullies tend to pick on the weak and the different, and that may mean the bullying is illegal. EEOC just issued new proposed guidelines on what constitutes illegal workplace harassment and how to prove it. I'll touch on some highlights.

EEOC goes through characteristics that are legally protected and gives examples. Here's what they say about race and color discrimination:

Race and color: Race-based harassment includes harassment based on a complainant’s race, e.g., harassment because the complainant is Black, Asian American, white, or multiracial.Examples of harassing conduct based on race include racial epithets or offensive comments about members of a particular race, or harassment based on stereotypes about the complainant’s race. It also can include harassment based on traits or characteristics linked to an individual’s race, such as the complainant’s name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups). Color-based harassment includes harassment based on skin tone.

Example 1: Color-based Harassment. Shawn, a Pakistani-American with brown skin, files a charge of discrimination alleging that two of his direct supervisors have subjected Shawn to unlawful harassment based on color. Shawn alleges that on a near-daily basis, his supervisors call him “turd” and otherwise make comments to him that suggest his skin is the color of human feces. According to Shawn, one supervisor exited the bathroom, placed a cup containing feces on Shawn’s desk, and stated the feces looked like Shawn. Based on these facts, Shawn has alleged harassment based on color.

They also describe national origin, sex/gender, religion, pregnancy/childbirth/related conditions, sexual orientation and gender identity, age, and disability-based harassment and give examples. 

Here are some other issues they cover:

Erroneous perception: "Harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person has a particular national origin or religion, is covered by federal EEO law even if the perception is incorrect.[47] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the perception in both instances is incorrect."

Association: "The EEO laws also cover “associational discrimination.” This includes harassment because the complainant associates with someone in a different protected classor harassment because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group."

Same class: "Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class."

Societal expectations: "Harassment based on protected characteristics includes harassment based on social or cultural expectations regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, usually act, appear, or behave.This includes, but is not limited to, harassment based on assumptions about racial, ethnic, or other protected characteristics, or sex-based assumptions about family responsibilities, suitability for leadership roles,or sex roles."

Example 9: Causation Established Based on Sex Stereotyping. Eric, an iron worker, alleges he was subjected to sexual harassment from his foreman, Joshua. The investigation reveals that Joshua found a remark Eric made to be “feminine” and then began calling Eric “pu__y,” “princess,” and “fa___t,” often several times a day. Several times a week, Joshua approached Eric from behind and simulated intercourse with him. On about ten occasions, Joshua exposed himself to Eric. Based on these facts, the investigator concludes that Joshua targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex.

Causation: The guidance gives many examples of how to prove that it was discrimination that caused the behavior as opposed to something else. 

Example 10: Causation Established by Social Context. Ron, a Black truck driver, finds banana peels on his truck on multiple occasions. After the third of these occasions, Ron sees two white coworkers watching his reaction to the banana peels. An investigation reveals no evidence that banana peels were found on any other truck or that Ron found any trash on his truck besides the banana peels. Based on these facts, an investigator concludes that the appearance of banana peels on Ron’s truck was not coincidental. The investigator further finds that the use of banana peels invokes “monkey imagery” that, given the history of racial stereotypes against Black individuals, was intended as a racial insult. It thus constitutes harassment based on race.

Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic. Tyler is a manager for an educational services firm. Tyler directly supervises two women, Kailey and Anu, and two men, Sandeep and Levi. Tyler grants Kailey’s request for time off to visit her dying sister. When Kailey returns, Tyler confronts her and yells at her for not reading her “damn email” while she was away. From then on, Tyler regularly hovers over Kailey and Anu as they work to make sure they don’t “mess up.” Tyler also yells and shakes his fist at Kailey and Anu when he is angry at them. This conduct continues, and Kailey and Anu file EEOC charges alleging harassment based on sex. During the investigation, the investigator finds that Sandeep and Levi report that Tyler, although occasionally irritable, generally engages in friendly banter with them that is different from the aggressiveness that Tyler displays toward female employees. Tyler sometimes even allows Sandeep and Levi to relax in his office in the afternoons, doing little or no work. Tyler also permits Sandeep and Levi to leave the office early and does not monitor their work performance. Tyler’s different treatment of women and men who are similarly situated would support an investigator’s conclusion that Tyler’s treatment of Kailey and Anu was based on their sex.

This proposed guidance is pretty comprehensive and is a good resource to review if you think you've been illegally harassed. When in doubt, talk to an employee-side employment lawyer in your state about your rights. 

Harassment, Hostile Environment, and Bullying: How To Figure Out If They're Illegal

Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker or they are in a "hostile work environment" that they automatically have a claim against the employer. This is simply not the case. While general harassment and bullying are legal in all states, some states have pending legislation on workplace bullying. Since 2003, many states have introduced workplace bullying laws, none of which have passed (except, oddly, Tennessee, and that's just for government employees).

Illegal harassment: The only types of harassment or hostile environment that are illegal are harassment due to race, age, sex, sexual orientation, religion, national origin, color, disability, pregnancy, genetic information, having objected to illegal activity, having taken Family and Medical Leave, making a worker’s compensation claim, or having engaged in activity that is otherwise protected by a statute (in some states, other categories might be taking domestic violence leave, having a firearm in your vehicle, marital status, because of testimony under subpoena). If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

Report it: The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court (not my rule - talk to the folks in the robes) says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

Employer’s duty: Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all, or tell you what they did. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved. Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or your state agency, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

What to put in the report: General harassment, hostile environment, bullying, and other disruptive behavior that is not addressed to an employee due to a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RELIGIOUS HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior. While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

Bullies are a huge drain on corporate time and assets. Employers should adopt zero tolerance policies regarding bullies. But even if they do, reporting bullies won’t protect you from retaliation unless your state legislature or Congress wises up and passes an anti-bullying law.

If you are harassed or are in a hostile work environment, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.

Dear Employees and Job-Seekers: Stop Making These Career-Killing Mistakes

As someone who has handled employee-side employment law for many years, I run into the same frustrating mistakes over and over again. I thought I'd touch on a few that are common so that maybe I can stop you (or a friend or family member) from destroying their career.

Here are the most common career-killing mistakes I see in my practice:

1. Complaining about harassment: This is really the number one problem I see. If you write a long email to HR or your boss complaining that you are being "harassed," you aren't protected against retaliation. While harassment due to race, age, sex, national origin, religion, disability, or another legally-protected category is illegal, just plain "harassment" is not. So reporting it that way doesn't protect you against retaliation. When I ask why people didn't report that they were being treated differently than coworkers of a different race, sex, etc. they usually say something like, "I didn't want to go there." Well, if you'd gone there, firing you for your complaint would have been illegal. But firing you for saying you were harassed or bullied: not illegal.
2. Disclosing pregnancy or disability during interviews or applications: So many people think they have to disclose a pregnancy or disability right up front when they're job hunting. And I know many misguided TV shows portray failing to do so as somehow dishonest. But disclosing pregnancy or disability before you get a job offer mostly means the offer will never happen. You need to disclose after you get the offer, and only if you need accommodations such as time off for doctor's appointments. If the job offer is withdrawn after you seek accommodations, you might have a discrimination case.
3. Failing to put in for intermittent Family and Medical Leave: If you have worked at least a year and your employer has at least 50 employees, odds are you qualify for FMLA. If you need periodic time off for doctor's appointments, to care for a family member, to adjust your medications, or other medical reasons, then put in for intermittent FMLA. That way, you are legally protected against having those absences, latenesses, or leaving early held against you. I'm not sure why many employees are so hesitant to put in for FMLA when they or a family member have a serious medical condition. FMLA is there to protect you. Use it.
4. Failing to report sexual harassment in writing: If the boss or a coworker is hitting on you, making inappropriate comments or touching you, report it under the company's sexual harassment policy, but do so in writing. Otherwise, I find that HR will almost always denied that you made any legally protected complaint. They'll claim you complained about unfair treatment or harassment or bullying but never mentioned that it was sexual harassment. 
5. Failing to get out of a toxic environment: If you have a workplace that is making you physically or mentally ill due to bullying or other toxic conditions, get the heck out of there. But do it on your own time. Start looking and keep working. The mere act of job hunting will frequently make the terrible job more bearable.
6. Quitting without having a job lined up: If you let a sexual harasser or workplace bully run you out of a job before you have something lined up, they win. You're letting them put you in an even worse situation. When people tell me the workplace is too stressful and they have to get out, I ask them if they will be more stressed staying in the workplace or whether they will be more stressed being unemployed for 6 months or a year. It's way easier to get a job if you have a job. If you're in physical danger, then get out no matter what. Otherwise, unless you have enough savings to last at least a year while you're job hunting, try to stick out the bad situation while you're looking. Having a large resume gap is often a career killer. Oh, and nobody can actually force you to resign.

Hopefully I've just stopped you from making one of these career-killing mistakes. Tell a friend or a family member. Spread the word.

Those Anti-Muslim Rants Are Going To Get You Sued

In light of the attacks in Paris and the end of Jihadi John, I'm guessing there will be lots of workplace cooler talk about Muslims and Middle Easterners in the news. Inevitably, someone will go on a rant about Muslims. That person will get you sued unless you shut them down speedy quick.

A recent example is a lawsuit filed after a Muslim employee was taunted by coworkers with cries of, "Allahu Akbar" when he was on the phone and setting his password as, "BinLaden1." The coworkers claim it was all in good fun. Not surprisingly, the Muslim employee was not amused.

So yes, it is sometimes tempting in anger over a big news story to vent frustrations on someone who looks or sounds different. I've met people from the West Indies, India, and even South America who looked to coworkers or customers slightly Middle Eastern and who were subjected to horrid treatment: name calling, offensive cartoons, moving them to the back of the workplace so customers won't see them, pranks. Calling a dark-skinned person a terrorist, asking them if they are going to cut off your head, or blaming them for ISIS is stupid. It's also illegal. So is refusing to hire an applicant who wears a hijab, bowing to customer preferences not to deal with a Muslim employee, and firing an employee when you find out that they don't hold your religious beliefs.

To HR people, I would urge you to shut down any such activities immediately. You may not be popular, but you might just save the company from a lawsuit. You might remind offenders that all Muslims are not any more responsible for the attacks in Paris than all Americans are responsible for the actions of Timothy McVeigh (the Oklahoma City bomber).

To Muslims and Middle Easterners (and people who "look" Muslim) going to work this week, don't despair. Take good notes of any incidents, with dates, locations, and witnesses. Print out any offensive emails or written materials. Then report it, in writing, to HR. Call it, "Formal Complaint Of Religious/National Origin Harassment." Lay out how you have been treated differently than non-Middle Eastern/non-Muslim employees (or Anglos, etc.) and any harassment you encountered due to your national origin and/or religion.

If they won't shut it down, contact EEOC or an employment lawyer in your state. You have the right to work in a place free of religious and national origin-based harassment.

Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.

Bob
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minions?????

Even though employers have to accommodate religious beliefs at work, do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

I write about the legal issues involved in determining how much religious expression at work is protected, and when it isn't in my latest article at AOL Jobs.

HR Wants To Meet! What Do I Do?

You get the call or the email and your heart sinks to your feet. HR wants to meet with you. Unless you think a promotion or raise is in the works, a meeting with HR is usually something employees dread. But if you do some basic preparation, you can be ready for anything.

Read my article in AOL Jobs to find out some things HR may want to meet with you about, and what you should do.

VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military

Remember back in May when I wrote about a court that said harassing people at work for their military service was not illegal? The case was one where airline pilots who are military members sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.” The 5th Circuit said USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.”

Well, if you were planning on harassing a subordinate or coworker because they’re in the military, you no longer have a green light. President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 on November 21, 2011. Along with lots of employer incentives and benefits for service people, this new law fixed the stupid loophole allowing harassment.

The Department of Labor hasn’t issued regulations on this yet, but the law is in effect now.

Maybe now Congress can fix some more loopholes in employment laws that end up with stupid results for non-military members. No? I didn’t think so.

Donna’s tips:

a. If you think you’re being harassed due to your military service, report it in writing to HR and give them an opportunity to fix the situation.

b. If the company doesn’t fix the situation and the harassment continues or you are retaliated against for reporting the harassment, you probably have a legal remedy now under USERRA.

c. Anyone who harasses someone due to their military service is a royal jerk who should be fired. I’m just saying.

So what do you think? Is this a good new law? Should you be allowed to harass people due to their military service? What other loopholes should Congress be working on? I’d love to see your comments.

Tortious Interference: Ammunition Against Workplace Bullies and Harassers?

            A new case in Florida is part of a growing trend where employees strike back against coworkers who bully or harass them at work. In Alexis v. Ventura, out of Florida’s 3d DCA, the court said it was error to dismiss a tortious interference claim against a supervisor.

            She alleged that her boss created a hostile environment motivated by a discriminatory intent against her. The court set out the elements of a tortious interference claim:

To state a claim for unlawful interference with an advantageous business

relationship, Alexis must allege the following elements:

1. The existence of a relationship between Alexis and her employer, under

which Alexis has legal rights;

2. Ventura’s knowledge of the relationship;

3. An intentional and unjustified interference with that relationship;

4. By a third party;

5. Resulting in damages to Alexis caused by the interference.

Sloan v. Sax, 505 So. 2d 526 (Fla. 3d DCA 1987).

The question on appeal was whether the supervisor was a “third party” for purposes of her claim. Normally, a supervisory or managerial employee is considered to be a party to the employment relationship. However, the court said:

There is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):

For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.”

Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)).

            I thought this was an interesting case because it could provide extra ammunition to an employee who is a harassment or even a bullying victim. The problem with suing individuals, of course, is that they rarely are wealthy enough to pay off judgments of any amount. Still, where bullying and general harassment are legal, this type of suit might enable victimized employees to strike back.

            I checked it out and it looks like tortious interference claims have been allowed in some states but not others. Some states that seem to be allowing these claims (I’m sure my colleagues in these states will tell me if I’m wrong) include Massachussetts, Texas, Missouri and New York. In addition to the problems with suing the individuals, your company is always going to be a “party” to your employment relationship, so you won’t be able to tag your employer with this type of claim.

            Another downside I see to these claims is you have to claim the coworker or supervisor was acting outside the scope of their employment, which might mean a free pass from the employer if you’re also suing them. But if the company points to the individual and says they were working outside the scope of their employment, it might be wise to bring in the individual and let the jury decide which one is to blame.

            I’m always looking for ways to go after bullies, so this looks like a promising claim if it’s allowed in your state.

Serving Your Country? Too Bad: Court Says It’s Legal For Your Employer to Mock Your Military Service

Airline pilots who are members of the U.S. Armed Forces Reserves and the Air National Guard sued after being mocked and ridiculed at work due to their military service. They sued for hostile work environment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA says employers can’t deny any “benefit of employment” due to military service. “Benefit of employment” includes “advantage, profit, privilege, gain, status, account, or interest.”

The court found that USERRA “does not refer to harassment, hostility, insults, derision, derogatory comments, or any similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.” Um, okay. So harassment and insults don’t affect your status at work? Apparently not.

Two circuits have recognized constructive discharge claims under USERRA, but this would require showing that no reasonable person could have tolerated the working conditions. That’s really tough to prove.

This was the first federal appellate decision on this issue, but some federal district courts have held to the contrary, so more courts will be weighing in on this issue.

In the new political climate of employee rights under siege, can we all at least agree that we need to protect those who serve our country? We should not allow employers to make our military members miserable at work due to their service to our country. Will Congress fix this? Or will they continue to allow employees, even those in our military, to be the victims of vicious political maneuvering?

I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

            I know it seems scary to report sexual, racial, or other harassment to human resources. It’s even scarier when they call and tell you they’ve set up a meeting with their lawyer and you. Some employees want to refuse or delay this meeting. But being called into a meeting like this is actually a good sign. It means your employer is doing what they’re supposed to do. (Either that, or you’re being set up to be fired, but let’s stay optimistic).

            The Supreme Court says you must report discriminatory harassment under the company’s published harassment policy and give the company a chance to fix the situation. No excuses accepted, no exceptions made. (In Supreme-land, nobody is ever justifiably afraid of being beaten to a pulp, fired, demoted, or made miserable if they complain).Yeah, yeah, I know. But it's not my rule. You still have to do it.

Once the employer receives a report of discrimination or discriminatory harassment, they are supposed to conduct a reasonable investigation. If the discrimination or harassment has occurred, they must take prompt action to correct the situation. Plus, they’re now on notice that someone in their company has a propensity toward illegal behavior.

            With a little preparation and a little backbone, this meeting may be just what you need to make your work life peaceful again. Here are some do’s and don’ts for that meeting.

            DO

• Put your complaint in writing if you haven’t already. Make sure you call it a “Formal Complaint of Racial [or Sexual/Age-Based/National Origin, etc.] Harassment [or Discrimination].” That way they can't claim later you only reported general harassment or bullying.
• Make notes to take with you. Write down everything that was said or done where you were singled out for harassment or different treatment due to your race, age, sex, national origin, pregnancy, color, genetic information, religion or other protected status.
•  If any comments were made about your protected status, write those down too.
• Were you denied a raise, paid less, denied a promotion, or disciplined when others in a different category (different race, different sex, younger, non-disabled, etc.) were treated better? Write it down.
• Try to recall dates, who made the statement or singled you out, witnesses, and as much detail as you can provide. If you don’t recall an exact date, it’s okay to write down “around May” or “last Spring.” Do the best you can. Write it all down so you remember.
• Write down names of everyone in your same category (same race, same sex, etc.) who was also treated badly.
• Write down names of everyone in a different category from you who was treated better.
• If you have written proof – emails, memos, photos, recordings (not illegal tape recordings of conversations though), or other documents, gather them to bring to the meeting. Be organized. You’ll be more believable and you’ll look professional.
•  Take good notes of the questions asked and the answers you gave.
• If you have an attorney already, let them know about the meeting. While they may not be allowed to attend, they might ask if they can. At the very least, they might give you some tips on what to say and what to expect. They may have their own do’s and don’ts they want to go over with you. If you're represented, the company attorney can't meet with you without your lawyer's permission.
•  If you’re a member of a union, tell your union representative. They’ll probably want to be with you.
•  Stick to your guns. If they try to get you to change your story, say it wasn’t due to race/age/sex, etc. but something else, don’t cave.
• Ask if you can see the investigative report once it’s complete.
• If you remember something after the meeting, think you didn’t have an opportunity to present everything, or want to clarify something, do write a memorandum to the people who attended the meeting laying out the details you want to add, so you have proof.

            DON’T

• Don’t tell your coworkers about your complaint or start bad-mouthing anyone. Your complaint is supposed to be confidential. The employer might discipline or fire you for violating confidentiality.
• Don’t talk about unfair treatment, general harassment, personality conflicts or bullying. Those aren’t illegal. Make sure to focus on your complaint.
• Don’t use illegal recordings. If you recorded a conversation with your harasser and the harasser didn’t know about it, in some states you may have committed a crime.
• Don’t insist on having an attorney present, to the extent you refuse to attend the meeting. Most companies won’t allow you to bring an attorney with you to an internal investigation. If you refuse to cooperate, they’ll have a nice defense to your claim and they might say you were insubordinate.
• Don’t concede that the reason the person you’re complaining about did something is they dislike everyone. If you are asked why the discriminating person did something to you, the answer is almost always, “Because of my race/age/sex, etc.” or “To retaliate against me for reporting discrimination.” If you say it’s because they’re a bully, you’re giving the legal department ammunition to say the person is an “equal opportunity harasser” who is mean to everyone.
• Don’t be evasive or try to play word games. You’ll look like a liar.
• Don’t ask for severance. They’ll claim you quit. If they ask what you want, say you want to work in a place that is free of discrimination/sexual harassment/racial harassment, etc. Don’t quit. If they fire you, contact a lawyer.
• Don’t demand the harasser be fired. They don’t have to discipline this person in any particular way. Don’t put yourself in a situation where you make them say that they have nowhere to put you in light of your demands.
•  Don’t yell, be insubordinate, be rude, or act unprofessionally. You’ll just give them a legitimate reason to fire you.
• Don’t refuse to come back to work. You have to work, or they’ll say you abandoned your position.
• Don’t forget that HR and the corporate attorney are there to protect your employer, not you. You shouldn’t say or do that could get you disciplined or fired.
• Don’t give the company your only copy of anything. Make sure you have copies of your notes, evidence, witness lists, etc.
• Don’t freak out when they start interviewing coworkers. They’re supposed to do that. They have to investigate what you’re saying. That means the harasser will probably find out about your complaint.
• Don’t get upset if they say they won’t give you a copy of the investigative report or let you know their conclusions. Some employers will, some won’t. If you end up having to sue, EEOC and your lawyer will be able to get the report.
• Don’t be surprised if they say they conclude there was no discrimination or illegal harassment. Very few HR people or lawyers will admit anything in writing. Even if the official report says it didn’t happen, the harasser might have been warned or disciplined in some way.

Once the interview is done, you need to be patient. If you encounter more discrimination/discriminatory harassment, or if you are retaliated against for complaining, report it in writing to HR.

Most employers take discrimination complaints seriously and try to do the right thing. If you go into your meeting prepared, have your proof and witness lists organized, act professionally, and don’t have unreasonable expectations, this is your best opportunity to get the company to assure you have a workplace free of discrimination and discriminatory harassment.

If your employer doesn’t correct the situation and it continues, or if you are retaliated against by a demotion, termination, cut in pay/hours, or something that affects you in the wallet, it’s time to talk to an employment attorney in your state. The work you did to prepare for your meeting won't have been wasted. You'll be ready for your meeting with the lawyer. Hopefully you'll have enough ammunition to convince the attorney that they can sue your employer's socks off.

Top Ten Employment Laws You Think Exist – That Don’t

Everyone tells me they know their employee rights. Some are even dumb enough to tell their employers they know their rights. The problem is, most of you are getting your legal information from courtroom TV shows or coworkers who know less than you do. Before you mouth off about your rights, here are some laws that most employees think exist - that don't.

• Wrongful termination

If you live in Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason in most states. Arizona has a law based on the Montana law, but they took the "just cause" (and some other pro-employee stuff)out of it.

• Right to your file

No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings.

• Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks. If you're a nursing mother, you're entitled to an unpaid break to express breast milk if your employer is big enough. Some states also offer protection for nursing moms taking breaks.

• Hostile environment/harassment

Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal.

• Free speech

Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.

• Privacy

There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.

• Discrimination

Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.

• Individual liability

As much as it may give you joy to sue your boss personally, you probably can’t. Federal and many state discrimination laws, Family and Medical Leave Act (in some states - the courts disagree on this), and most other laws simply don’t allow it. The one exception is wage and hour violations. Some state discrimination laws do hold supervisors liable for violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.

Well that's wrong. What can I do about it?

Since most people think these laws exist, maybe it's time for them to actually be passed. Email your congressperson and state representative now and complain if you don't like the fact that you're not protected. Here are some places to find out how to contact your representative in Congress:

http://www.contactingthecongress.org/

http://www.congress.org

Here's a website with contact information for elected officials at the state and federal level:

http://www.usa.gov/Contact/Elected.shtml

Should I Quit My Job?

I get asked this question a whole lot. Here's my answer:

In this economy? What, are you nuts? That’s not really a legal question, but unless you have another job lined up, probably not.

I’m being harassed? Should I quit?

See answer above. But now we’re getting closer to a legal question.

In general, at least in most states, harassment isn’t illegal. Bullying isn’t illegal. If you’re being harassed due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category, then, and only then, may the harassment be illegal.

For discrimination, you’re only protected if the employer has 15 or more employees. For Family and Medical Leave, they must have at least 50 employees. For other categories, check your state law to see whether you qualify. So you need to be sure the law protects you. Think you’re protected?

Still, you should not quit.

What you should do is report the harassment to human resources or whoever is named in the company’s harassment policy. I recommend you report it in writing so they can’t deny that you did it. You have to give them time to investigate and take action to stop it.

If they don’t stop it, or if they fire you for reporting it, then contact an employment attorney to discuss your remedies.

The truth is, only under the most extreme circumstances will the courts find that you were "constructively discharged," that is, that your quitting was because no reasonable employee would tolerate the circumstances. Should the law change? Probably. So talk to your legislators and congressional representatives.

In the meantime, the law hates quitters.

Why Do I Need An Employment Lawyer? Do I have A Case?

In general, there is no such thing as wrongful termination/discipline in most states if you don’t have a contract saying you can only be fired for cause. So why on earth would you ever need an employment lawyer? How do you figure out if you have a case?

Why Do I Need An Employment Lawyer?

There are some times in your employment that you may definitely need an attorney. Here are some reasons you might need a lawyer.

Deadlines: Employment laws are a morass of confusing deadlines, prerequisites to filing suit, and requirements you might miss if you try to do it yourself. If you’re thinking about filing suit, you probably want to speak to a lawyer.

Confusing claims: There are some employment laws on the books that you might not know about, so you might have a case you don’t know about. And there are some laws you think exist, that don’t. If you think you might have claims, if your termination doesn’t feel right or you think something has happened that’s illegal, you might want to run it past a lawyer.

Being taken seriously: Some employers don’t take you seriously unless you have representation.

Uncomfortable in confrontations: If you’re trying to negotiate your own employment agreement or severance package, many people don’t feel comfortable being in a confrontational situation or advocating for themselves. Sometimes it’s better to have an advocate.

When you absolutely, positively need a lawyer

If any of these happen to you, you should contact a lawyer immediately:

Your employer or former lawyer sues or threatens to sue you;

You’re being asked to sign an agreement that you don’t fully understand, especially if it’s a noncompete, confidentiality, arbitration, or employment agreement;

You’ve been accused of a crime (contact a criminal defense lawyer, not an employment lawyer, immediately).

When you might want a lawyer

If you think your employer or former employer has broken employment laws;

If you have been retaliated against for complaining about discrimination or something illegal the employer has done;

If you’re not being paid all the wages you’re owed;

If you think you’re misclassified as exempt from overtime or as an independent contractor.

When you probably don’t need a lawyer

To make a written complaint of discrimination to the human resources department, as long as you follow the policy;

To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline, and sign “as to receipt only, rebuttal to follow);

To sign documents you understand, like applications, insurance forms, and tax documents.

To file a union grievance if you’re a union member (use your union rep – they’re free).

Do I Have A Case?

Here is a checklist to help you figure out if you might have a case against your employer. It’s not exhaustive, since every state has different laws, but this will give you a start.

Cases involving termination, demotion, or suspension without pay

If you answer yes to any of these questions, you may have potential claims. You’ll want to contact an employment lawyer in your state to find out if you have a case if any of these occurred shortly before your termination, demotion, suspension without pay or other discipline.

_____ Did you make a worker’s compensation claim shortly before being fired?

_____ Had you recently objected to, refused to participate in, or reported illegal activity or discrimination by the company? (as opposed to something unethical or a violation of company policy)

_____ Had you recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy?

_____ Has the employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer?

_____ Had you recently performed jury duty?

_____ Had you recently served in the military?

_____ Had you recently taken family or medical leave?

_____ Had you recently served as a witness in a lawsuit or provided testimony or evidence to EEOC?

_____ Had you recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment?

_____ Did your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week? Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It’s not illegal to discriminate against you for being you. If the discrimination or harassment fits in one of the categories below, you should contact an attorney or EEOC to find out more about your rights and your responsibility to report it before you make a claim.

___ Race ___ Sex ___ Sexual harassment ___ Religion ___ Ethnicity ____ Disability ____ Age___ Pregnancy ____ National origin ____ Color (same race) ___ Genetic information ____ Retaliation for objecting to discrimination

Ask yourself how you were treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color under the same circumstances. Some states, counties or municipalities have more categories, like marital status and sexual orientation. If you can’t point to someone else who was treated differently under the same circumstances, or to instances where you were singled out for different treatment than others, you may not be able to show discrimination.

Does the employer have 15 or more employees? If not, discrimination laws may well not apply. Some states, counties and municipalities have laws that apply to smaller employers.

Why Isn’t My Case On Your List?

Many people are quite certain that some employer actions are illegal, based on bad TV dramas and misconceptions. Here are some examples of things that aren’t illegal, even though you might assume they are:

• Breaks

No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority.

• Hostile environment/harassment

Hostile work environment is not illegal. General harassment is not illegal. Bullying is not illegal. Only hostile environment/harassment due to race, age, sex, disability, or another legally-protected status is illegal.

• Free speech
Only government employees have free speech protections, and those are very limited.

• Privacy
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You have some privacy rights in your medical information. There is no federal law protecting your social security number, but two states offer limited protection against employers displaying your number.

• Right to work

Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a non-compete agreement is meaningless or that it won’t be enforced, they are lying to you.

• Retaliation

There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, lack of professionalism, ethical violations, bullying, or jerkish behavior.

If you think you have claims to make against your employer or former employer, then the best course of action is to contact an employment lawyer in your state to discuss potential claims.

Overview of Employee Rights

           Many employees are confused about their rights in the workplace. You may have rights you didn’t even know about, or think you have rights that don’t exist. This post will cover some basic employee rights, and try to clear up some misconceptions.

·         Discrimination

            You DO have the right to not be discriminated against based on race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories. But this right only applies if your employer is large enough. In most cases, your employer has to have at least 15 employees (for age, 20 employees). However, some states and local governments protect employees of smaller employers.

            You DON’T have the right to be of discrimination against you for being you. There are no protections for personality conflicts, weight, appearance, political beliefs (except if you work for government), non-religious beliefs, and other non-protected categories.

            You MIGHT have the right to be free of discrimination based upon sexual orientation, marital status, or other categories if your state or local government provide additional protections.

·         Harassment

You DO have the right not to be harassed due to your race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories, if your employer is big enough (see above).

You DO have the right not to be harassed if you’re a covered whistleblower, took covered Family and Medical Leave, made a worker’s compensation claim, or took some other legally protected action.

You DON’T have the right to be free of a hostile work environment that isn’t based on one of the above categories.

You DON’T have the right to be free of bullying or general harassment in the workplace.

If you complain about harassment, you DON’T have the right to be free of retaliation unless what you complained about was legally-protected harassment in one of the categories above.

·         Breaks

You DO have the right to be paid if you work through your lunch break or if your breaks last less than 20 minutes. This only applies if you are not exempt from the requirements of the Fair Labor Standards Act.

You DON’T have any federally-protected right to any rest or meal breaks. A few states do have some rest and meal break requirements, and the links are below. This is one of the most common misconceptions.

You PROBABLY have the right to take reasonable bathroom breaks. OSHA covers workplace safety and has requirements that restroom facilities be available. There’s no specific OSHA regulation about bathroom breaks, but if your employer won’t allow them, you might report them to OSHA.

·         Right to Work

If you live in a “right to work” state, you probably think you have rights you don’t. Be careful about this.

If your state is “right to work” that means you DO have the right to work in most industries without joining a union.

You DON’T necessarily have the right to work for a competitor. If you’re being asked to sign a noncompete agreement, get legal advice from a lawyer in your state. Don’t believe anyone other than a lawyer who practices employment law in your state who claims you can go ahead and sign because they won’t be enforced. Right to work simply has no effect on noncompete agreements.

You DON’T have the right to be fired only for good cause. Most states are at-will, meaning you can be fired for any reason or no reason at all unless you have a contract saying otherwise.

• Benefits

You DO have the right to get a description of your health insurance, pension, and other benefit plans.

You DO have the right to enforce the duty of the people managing your benefit plans to administer them without fraud, self-dealing or kickbacks.

You DON’T have the right to any specific benefits from your employer. Your employer doesn’t have to provide health insurance, vacation pay, sick pay, severance pay, pension or other benefits unless they have an existing plan.

You DON’T have the right to keep your insurance if the company cancels the health insurance plan.

• Contracts

            You DO have the right to understand contracts you’re being asked to sign before you sign. If you don’t understand, get advice from a lawyer before you sign.

            In some states, you DON’T have the right to refuse to sign a contract. Some states allow an employer to require you to sign away your rights to work for a competitor, get a trial if you’re a discrimination victim, or get a jury trial, and they are allowed to fire you if you refuse.

            You DON’T have the right to a jury trial, to try your case in court instead of arbitration, to work for a competitor, or to bring claims against your employer if you’ve signed away your rights, so make sure you understand what you’re agreeing to before you sign.

• Hours

            You DO have the right to be paid for all hours worked and to be paid overtime for hours worked over 40 hours if you aren’t exempt.

            You DON’T have the right to a specific schedule, to not work extra hours, or to come in late.

• Illness

            You DO have the right to take Family and Medical Leave if you’ve worked at least a year, if you work enough hours, and if your employer has 50 or more employees. But there are lots of hoops to jump through, so read your handbook and know the employer’s requirements.

            You DON’T have the right to sick leave, excessive absenteeism, take care of a sick kid, or miss work due to illness (even with a doctor’s note) unless you are covered by Family and Medical Leave.

• Disability

You DO have the right to seek reasonable accommodations for your disability that allow you to perform all the duties of your job, if your employer has at least 15 employees.

You DON’T have the right to be excused from any essential duties of your job, to light duty, or to accommodations that create an undue hardship for your employer.

• Whistleblower

            You DO have the right to report illegal activities of the employer to specific government entities, to object to or refuse to participate in certain illegal activities of the employer, and to not be retaliated against for doing so. Whistleblower laws are diverse and have lots of requirements, so make sure you’re doing what is required before you report or object to the illegal activity.

            You DON’T have the right to complain about incompetence, coworkers ripping off the company, ethical violations, unprofessionalism, or general harassment without rising retaliation. Make sure you’re protected before you complain.

• Privacy

            You DO have the right to privacy in your phone calls unless your employer meets certain legal requirements. If you think you’re being illegally recorded, contact an employment lawyer to find out your rights.

            You DO have some rights to privacy of your medical information.

            You DO have the right to not be subjected to a polygraph (except certain professions like law enforcement).

            You MAY have the right to privacy of your credit information. While many employers use credit history in their employment decisions, more states and EEOC are finding this practice to be a legal violation. It’s illegal to discriminate against you based upon a bankruptcy.

            You DON’T have the right to keep your criminal record a secret unless it’s expunged.

            You DON’T currently have the right to refuse to allow your employer to seek a credit report, but there are lots of laws in the works on this issue.

            You DON’T have the right to dress any way you want.

            You DON’T have the right to privacy in you off-duty behavior. You can be fired for things you do outside of work.

            You DON’T have the right not to be videotaped (without audio).

            You probably DON’T have the right not to have your belongings searched. Very few states provide protections. If you work for government, you are protected from being searched.

            You DON’T have the right to privacy in your workplace internet use or email.

            You probably DON’T have the right not to be drug tested. No states prohibit employment drug testing, but some do require cause for the test if it’s done while you’re employed, as opposed to pre-employment.

            You DON’T have the right to free speech. Your postings on Facebook, Twitter, your blog and other websites can get you fired. If you work for government, you have some free speech protections but they’re not unlimited.

            Conclusion

            There are entire sections of law libraries devoted to employment laws. When in doubt, consult an employment attorney before you complain, quit, sign contracts, or sue. The laws are confusing and sometimes have short deadlines and prerequisites to suit. If you think your employer or former employer is breaking the law, make sure you get legal advice.

Websites:

Department of Labor fact sheets on exemptions from the Fair Labor Standards Act http://www.dol.gov/whd/regs/compliance/fairpay/

Department of Labor fact sheet on most common exemptions: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm

List of states that have required rest periods for adults, and their requirements: http://www.dol.gov/whd/state/rest.htm

List of states that have required meal breaks for adults, and their requirements:

http://www.dol.gov/whd/state/meal.htm