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Archive for Workplace harassment

50 or More Employees? Here’s What You Need to Know

When your organization reaches 50 or more employees there are some additional federal, state and local laws you need to start following to ensure you are in compliance. Here are two important areas of compliance that affect employers with 50 or more employees.

Harassment Prevention Training

Since 2005 employers with 50 or more full-time, part-time, and temporary employees or independent contractors have been required to provide supervisory employees with two hours of sexual harassment prevention training within six months of hire or promotion, and once every two years thereafter. 

Under recently passed legislation, employers with five or more employees are now required to provide anti-harassment training to all employees – both supervisors and non-supervisors – every two years. California SB 1343 requires that all employees be trained by the end of 2019.  Training for non-supervisors must be at least one hour. Training for supervisors must be two hours.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law that requires covered employers to grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • For the birth and care of the newborn child of the employee;
  • For placement with the employee of a son or daughter for adoption or foster care;
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Companies fall under FMLA when they have 50 or more employees in any (not just consecutive) 20 calendar weeks of the current or preceding year.

Eligibility

Employees who satisfy certain criteria are eligible for Family or Medical Leave of up to 12 weeks during each rolling 12-month period in accordance with applicable law.  Employees eligible for Family and Medical Leave are those who:

  • Have completed 12 months of employment with their employer;
  • Have worked at least 1,250 hours for their employer during the previous 12 months; and
  • Work in a facility with at least 50 employees or in a facility where there are at least 50 employees within 75 surface miles.  Employees with no fixed work site will be considered to work from the site to which they report, or the site from which their work is assigned, or the site designated as their home base. 

NOTE: Companies must continue the same health plans in which the employee was enrolled before the first day of the leave at the same level and under the same conditions of coverage as if they had remained an active employee for the lesser of the duration of such leave or 12 work weeks. 

California Family Rights Act (CFRA)

The California Family Rights Act (CFRA) is very similar to FMLA and applies to employers in California.  CFRA allows eligible employees to take up to 12 weeks of unpaid job-protected leave during a 12-month period. 

CFRA covers private employers with 50 or more workers within 75 miles of the worksite, and public employers with any number of workers.  CFRA runs concurrently with FMLA.

CFRA was enacted to provide employees with work leave rights for reasons such as:

  • Birth of a child.
  • Placement of the employee’s child through adoption or in a foster care home.
  • A serious health condition incurred by the worker’s spouse, child, or parent. 
  • The employee is unable to work because of a serious health condition.

Eligibility

Employee eligibility for CFRA is similar to FMLA.  For both CFRA and FMLA, time off for sick leave, vacation/annual leave, administrative time off (ATO), compensating time off (CTO), holidays, informal time off (ITO) or personal leave (PL) are not to be counted toward the 1,250 hours of work.

Training Leave for Emergency Rescue Personnel

Employers with 50 or more people must allow temporary leaves of absence — up to a total of 14 days per calendar year—for employees who are volunteer firefighters, reserve peace officers and emergency personnel to engage in fire, law enforcement or emergency rescue training.

You cannot terminate, threaten with termination, demote, suspend or otherwise discriminate against an employee who takes time off to engage in fire or law enforcement training. An employee who suffers any of these consequences is entitled to reinstatement and reimbursement for lost wages and work benefits.  The employee can file a claim with the Division of Labor Standards Enforcement (DLSE).

San Francisco Paid Parental Leave

This San Francisco ordinance requires employers with 50 or more employees to supplement California’s Paid Family Leave (PFL) for employees working in the city.  The purpose is to allow employees to receive 100% of their gross weekly wages while on a parental leave of absence.  PFL currently provides eligible employees with up to 55% of their regular wages.  Employees may receive these benefits for up to six weeks in a 12-month period.  San Francisco’s law requires covered employers to provide additional wage replacement benefits of up to 45% of the employee’s wages, subject to the weekly maximum.

Please contact me at michelle@connecttohr.com for more information about what you need to consider as a business with 50 or more employees.

Managers Increasingly Held to a Higher Standard

As I discussed in my last blog, recent legislation establishes that managers can now be held personally liable for not following the law, even if they do so unintentionally. Two key areas where this has played out in court are hostile work environments and wage and hour violations.  

Managers are being held to a much higher standard.

This means that business owners and senior leaders must be sure they understand and follow the laws, and they must also ensure that their managers and supervisors understand and follow the laws. Some ways to accomplish this are through management training, effective communication, and/or one-on-one coaching.

In the wake of the #MeToo Movement and other workplace harassment situations, the threshold for acceptable behavior has been revised. In the past, plaintiffs had to show a pattern of behavior for a workplace to be deemed a hostile work environment. Today it can be considered as such based on one or two incidents. “But we’ve always had an informal, joking environment,” is not an acceptable excuse.

Managers need to pay attention to behaviors that may be offensive to some and stop them before they become part of the culture. If not, they could be held personally liable for creating a hostile environment. Encourage managers to periodically gauge team interactions and speak with individuals to proactively identify any issues and to promote a positive culture.

Also, senior leadership and all managers and supervisors should model the appropriate behavior they expect from others.

In the past it was very rare for a manager to be named in a wage and hour dispute. Not so today. California’s Labor Code 558.1 states that “a company’s owners, directors, officers and even managing agents can be held personally liable for wage and hour violations.”  It’s not enough to say that not following the law was unintentional, or a mere oversight.

If you need help ensuring that you are legally compliant, or in coaching managers around any of these issues, please contact me at michelle@connecttohr.com.

New Laws on Harassment, Wage and Hour Violations

In my work with organizations I have two focus areas – Executive Coaching and HR Consulting. Keeping clients abreast of new and changing legislation in the dynamic world of California labor law falls into the HR Consulting bucket, but is also important for the executives I coach.

Here’s an update on some key legislation affecting employers in 2019.

New Restrictions on Sexual Harassment Settlement Agreements

Two recently enacted laws will make it more difficult for employers to resolve workplace sexual harassment and discrimination disputes.  

The Code of Civil Procedure Section 1001 prohibits settlement agreements that bar the disclosure of facts related to claims filed for:

  • Sexual assault
  • Sexual harassment
  • Workplace harassment or discrimination based on sex
  • Failure to prevent harassment or discrimination based on sex
  • Retaliation against a person for reporting harassment or discrimination based on sex

The law allows the identity of the claimant, and any facts that could lead to the discovery of that identity, to remain confidential if requested by the claimant. Employers are still allowed to enter into settlement agreements that prohibit the disclosure of the settlement amount.

Another new law, SB 1300, amends California’s Fair Employment and Housing Act (FEHA) by placing additional limits on settlement agreements. Employers are now prohibited from requiring an employee, as a condition of employment or in exchange for a bonus or raise, to sign a non-disparagement agreement that prevents the employee from disclosing information about unlawful acts in the workplace. The law also adopts a lower standard for liability, as such:

  • A plaintiff does not need to prove that tangible productivity has declined as a result of the harassment.
  • A single incident of harassing behavior may be enough to create a hostile work environment.  Proof of a pattern of harassing behavior in the past is no longer required. 
  • Harassing behavior is not acceptable based on historical norms, or industry or company custom.

As an employer you should review your harassment policies to ensure that they align with the recent changes in law. Also, take complaints seriously!  Remember to always investigate claims using qualified, impartial investigators, and take corrective action.  Create a culture that makes it very clear to leaders and employees that harassment of any kind will not be tolerated.

California has expanded mandatory anti-harassment training to smaller employers

Employers with at least five employees must conduct mandatory sexual harassment training by the end of this year to comply with SB 1343, passed in 2018. SB 1343 requires that training of both supervisors and non-supervisors be completed by January 1, 2020. Training for supervisors must be at least two hours, and training for non-supervisors must be at least one hour. Training must be repeated at least every two years.  Remember to keep records of training received by employees and supervisors. 

Managers may be personally liable for wage and hour violations

According to a recent decision by a California appellate court (Atempa v. Pedrazzani), an owner, officer or managing agent of a corporate employer can be held personally liable for civil penalties for unpaid wages or overtime.

The plaintiff in this case worked at a restaurant owned by Pama, Inc. He sued the company for unpaid overtime, meal period and rest break violations. When Pama, Inc. filed for bankruptcy, the plaintiff successfully pursued recovery from the restaurant owner, Paolo Pedrazzani.

What this means for you as an employer is that you need to be sure that you and your managers consistently follow wage and hour rules. Even unintentionally failing to comply with the law can create personal liability.

Other legal decisions of note

Caldera v. Department of Corrections and Rehabilitation. The plaintiff in this case sued for harassment on the basis of disability after being taunted by his coworkers about his stuttering over a period of two years. The employer argued that the company had an informal, “joking” culture and that the behavior was not severe. The plaintiff won a $500,000 settlement.

This goes back to what I said earlier about creating a culture that is non-tolerant of harassment in any form.   Again, the threshold for harassment has been lowered and a pattern of behavior is no longer necessary to prove harassment.  If one of your employees is offended by harassing conduct you face potential liability even if the majority of employees are not bothered by the behavior.  Again, take complaints seriously and investigate claims right away.

Hurley v. Department of Parks and Recreation. In this case a manager had disclosed private information about a subordinate to a non-manager, violating the plaintiff’s right to privacy. This decision points up the fact that managers should only disclose information about subordinates on a need-to-know basis and never to non-managers. The manager in this case maintained a “drop file” on the plaintiff, containing work performance as well as private information. Private information about employees should only be stored in files maintained by human resources with proper confidentiality protections.

Important updates on the use of arbitration agreements in CA

Epic Systems v. Lewis. In this case the U.S. Supreme Court ruled that the National Labor Relations Act (NLRA) does not prevent employers from making mandatory arbitration agreements a condition of employment, even with a provision waiving the employee’s right to a class action claim.

Along these same lines, two other opinions favored employers with regard to arbitration agreements.

In Sonic Calabasas Al, Inc. v. Moreno, the court ruled that an employer may require an employee to resolve wage disputes through binding arbitration. In Iskanian v. CLS Transportation Los Angeles, LLC, the court rule that an employer may require an employee to pursue claims as an individual and not as part of a class action suit. If you have not implemented mandatory arbitration agreements, I suggest you seek legal advice about the pros and cons of implementing an agreement for your organization.

If you would like more information about any of these legal updates and how they apply to your organization, please contact me for a consultation. Michelle@connecttohr.com.  

Whatever Happened to Professionalism?

Professionalism-1Unless you’ve been avoiding the news over the past year, you’ve probably noticed that the national conversation – and in many cases behavior – has become increasingly negative. From the White House’s terse Tweets, to a growing number of hate crimes, to the now-famous memo that stoked the fires of gender bias, respect, empathy and good manners seem to have gone out the window.

As I work with my corporate clients, I’m finding that this bad behavior is also increasing in the workplace. Hostile work environment, bullying and harassment claims are on the rise. Because of our current political climate, some people think they now have license to make personal attacks and behave in a way that just a few years ago would have been unthinkable. Lack of professionalism is, sadly, becoming normalized.

Take the example of Uber, whose “aggressive, unrestrained workplace culture” was described in a New York Times article:

“Interviews with more than 30 current and former Uber employees, as well as reviews of internal emails, chat logs and tape-recorded meetings, paint a picture of an often-unrestrained workplace culture. Among the most egregious accusations from employees, who either witnessed or were subject to incidents and who asked to remain anonymous because of confidentiality agreements and fear of retaliation: One Uber manager groped female co-workers’ breasts at a company retreat in Las Vegas. A director shouted a homophobic slur at a subordinate during a heated confrontation in a meeting. Another manager threatened to beat an underperforming employee’s head in with a baseball bat.”

This culture ultimately led to an investigation, the firing of several executives and the resignation of CEO Travis Kalanick, who, as the top executive, had set the tone for the culture.

Work environments like this are especially challenging for those responsible for HR issues, especially when the tolerance or example of bad behavior starts at the top.

Next time, I’ll provide some tips for maintaining or bringing back professionalism in your organization.

Bad Behavior is Bad for Business

Bullying-3You only have to glance at the news to get the feeling that workplace bullying and harassment are on the rise. Bill O’Reilly was called out recently for his behavior toward women at Fox News, as Roger Ailes had been accused before him. As of a few days ago, more than 50 companies had pulled their advertising dollars from The O’Reilly Factor.

Clearly, bad behavior is bad for business.

Most of us are familiar with what constitutes harassment. However, I think a reminder is useful.

California law prohibits workplace discrimination and harassment in employment based on:

  • Ancestry
  • Age (40 and above)
  • Color
  • Disability (physical and mental, including HIV and AIDS)
  • Genetic information
  • Gender, gender identity or gender expression
  • Marital status
  • Medical condition (genetic characteristics, cancer or a record or history of cancer)
  • Military or veteran status
  • National origin
  • Race
  • Religion (includes religious dress and grooming practices)
  • Sex (includes pregnancy, childbirth, breastfeeding and/or related medical conditions)
  • Sexual orientation

Harassment may refer to derogatory comments, slurs or propositions; epithets; assault; blocking movement; offensive touching; physical interference with normal work or movement; and visual insults, such as derogatory posters or cartoons.

California law also requires that employers with 50 or more employees provide sexual harassment and abusive conduct prevention training for all supervisors. This training should be given when someone is first promoted to a supervisor position, and then every two years thereafter.

Workplace bullying, as defined by the Workplace Bullying Institute, is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is:

  • Threatening, humiliating or intimidating, or
  • Work interference that prevents work from getting done, or
  • Verbal abuse

Workplace situations of harassment or bullying impact not only the victims, but also other employees and, potentially, customers who either witness or experience the abusive behavior. Bullies tend to be equal opportunity perpetrators.

In my next blog, I’ll share a specific example of how bullying nearly lost a company several key clients, and I’ll give you some tips for recognizing and preventing bad behavior in your organization.

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