Employment Law Update – Winter 2013
National ‘Bullying’ Expert Advises Employers at K&C Seminar
Gary Namie, Ph.D. is recognized as a leading national expert on workplace bullying. Dr. Namie is president of Work Doctor, Inc., an organization dedicated to reducing workplace bullying. He is also the co-author of The Bully-Free Workplace and The Bully at Work and has appeared numerous times on national network TV. Given Dr. Namie’s credentials, attendees at the first showing of the K&C 29th Annual Employment Law Update in November appreciated his insights on what has become a very hot workplace topic.
According to a national survey, 35% of respondents (an estimated 54 million people) reported being currently or historically bullied. Bullying is mostly top-down, with perpetrators outranking their targets in the vast majority of cases, making the stereotype of the “bullying boss” very real. However, co-workers bully, too. The majority of bullying is same-sex harassment. In only 20 percent of bullying cases, the harassment is potentially illegal – actionable under anti-discrimination laws. Thus, non-actionable bullying is four times more prevalent than illegal harassment.
During his presentation, Dr. Namie pointed out that the consequences of bullying can not only dent the bottom line but can have a substantial effect on employee morale. He stated that bullying in the workplace can and should be addressed by management to reduce its negative consequences. He indicated that this can be challenging at times, since the bullying may be being perpetrated by upper-level management, but that appropriate steps need to be taken in any event.
Dr. Namie provided several practical suggestions to deal with workplace bullying, beginning with drawing a “line in the sand” with an effective written policy or statement declaring abusive conduct from any employee unacceptable. He recommended that everyone, regardless of rank within the organization, should be held accountable and employers should train managers to recognize and deal with workplace bullying. He also suggested that “antibullying” standards should be used in hiring, evaluating, and compensating employees.
After his presentation, Dr. Namie answered questions from the audience and, immediately thereafter, spent some time in the K&C answer booth addressing any other questions that attendees had for the nation’s leading expert on this topic.
While workplace bullying does not always lead to legal liability, depending upon the bully’s actions, it certainly can in some cases. At a minimum, workplace bullying has a negative impact on workplace morale and can cause a jury to be less sympathetic in court if a legal claim highlights the bullying antics of a management representative.
If you missed him the first time, Dr. Namie will be on hand again on April 11th for the second showing of the 29th Annual Employment Law Update at the Greater Richmond Convention Center. Other guest speakers, including the new Area Director of the Richmond EEOC Office, Darrell Graham, will also participate to make sure attendees receive the benefit of various valuable perspectives while being updated.
To Check or Not to Check? – The Dilemma of Criminal Background Checks
A recent federal case highlights the dilemma faced by many employers when it comes to background checks. Deborah Keen and Rundy Robertson worked together on a project cleaning up an oil spill in Mississippi. One day, Robertson drove Keen home and allegedly raped her. Robertson had a long criminal history (including a conviction that required him to register as a sex offender), but stated on his application that he had no criminal record. The staffing company that hired Robertson failed to conduct a background check, even though its own internal policies required one. Not surprisingly, Keen sued the project’s contractor and the staffing company for negligently hiring Robertson without performing a background check. Ultimately, the court found that the employer did not have an obligation to perform background checks on every employee and ruled in favor of the employer on Keen’s lawsuit.
Even though the employer ultimately won in this case, employers face liability for negligence, the possibility of high damage awards, and damage to their reputations when they fail to take reasonable steps to prevent this type of violent activity in the workplace. A simple background check could have prevented the entire situation, as many employers would not have hired Robertson because of his criminal background. However, last Spring, the EEOC put employers in a tough spot when it updated its guidance on employers’ use of criminal histories. The EEOC discourages employers from adopting blanket prohibitions on hiring anyone with a criminal record and, instead, urges employers to conduct an individualized assessment of whether a particular criminal record provides a job-related reason to not hire an individual. The EEOC’s position on the use of criminal histories creates tension with an employer’s desire to protect its employees and assets when hiring.
The choice between potential liability for negligence in hiring an employee with a criminal record and the potential liability for discrimination for hiring practices that have a disparate impact on a protected group presents a difficult dilemma for employers. However, it is clear in this day and age that employers cannot bury their heads in the sand and just hope for the best when it comes to hiring.
DOL Clarifies FMLA Leave to Care for Adult Children
This month, the Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation clarifying the Family and Medical Leave Act’s (“FMLA”) definition of “son or daughter” as it applies to an individual who is at least 18 years old and has a disability. The FMLA allows an eligible employee to take up to 12 workweeks of unpaid, job-protected leave to care for a son or daughter with a serious health condition. However, when a child is over 18 years of age, a parent is only entitled to FMLA leave if:
- The adult son or daughter has a disability meeting the Americans with Disabilities Act’s (“ADA”) definition of “disability.”
- The adult son or daughter is incapable of self-care because of the disability.
- The adult son or daughter has a serious health condition.
- The adult son or daughter is in need of care because of the serious health condition.
This Interpretation makes clear that the age when the onset of the disability occurs is irrelevant to whether the individual is a “son or daughter” under the FMLA. The Interpretation also clarifies that the parent of an injured or ill covered servicemember may be eligible for 12 weeks of FMLA leave in years subsequent to the period covered by military caregiver leave.
Covered employers should review their FMLA policies and practices to ensure compliance with the DOL clarification. FMLA leave entitlement is one of a number of “sticky” issues employers must consider in dealing with employee leaves/absenteeism. The 29th Annual Employment Law Update, which will be held on April 11th at the Greater Richmond Convention Center, will feature a session on employee absences and leave requirements designed to help employers meet their legal obligations. For more information, contact Julia Rhody at (804) 771.5722.
Focus on Break Space for Nursing Moms
As more of the mandates of the Affordable Care Act (“Obamacare”) come into play, the U.S. Department of Labor (“DOL”) has stepped up its enforcement efforts to make sure employers comply with the Act’s mandate to provide clean, private areas to express breast milk. Obamacare requires employers to provide (i) reasonable unpaid work time for new mothers to express breast milk for the first year after birth, and (ii) a place “other than a bathroom” that is shielded from view and free from intrusion. The requirement applies to all employers, but companies with fewer than fifty employees can avoid the mandate if they show undue hardship – “significant difficulty or expense.” However, merely being a small business is not enough to qualify for the defense.
While the frequency of required breaks has not yet been fully defined, a December 2010 DOL notice suggests that two or three breaks per eight-hour workday, of ten to twenty minutes each, might be appropriate. Also, several courts have held that employees cannot sue to enforce the requirement. Notwithstanding, the Wage and Hour Division of the DOL has stepped into the breach, bringing a number of enforcement actions against business in the last few months.
On a separate “Obamacare” front, remember that Virginia has elected not to establish a separate state-level health care exchange, which means the federal government will be providing Virginians with exchange access when “pay or play” insurance mandates take effect next year.
Randy Sparks Joins K&C Labor & Employment Team in Firm’s Richmond Office
The K&C employment law team is pleased to welcome its newest member, Randy C. Sparks Jr. to the firm’s Richmond office. A Hampton Roads native, but a Northern Virginia transplant, Randy has practiced in the area of labor and employment law exclusively for 12 years.
Randy concentrates his practice in employment litigation, representing employers in employment discrimination, sexual harassment, breach of employment contract, noncompete, and wage and hour claims before various state and federal courts and administrative agencies. He has also worked with several major insurance companies to defend his clients under Employment Practices Liability Insurance (EPLI). Randy has also been recognized by his peers with inclusion in Best Lawyers in America.
29th Annual Employment Law Update – Your Prescription For Compliance
As many companies experience the symptoms brought on by everyday employment law headaches, K&C is pleased to announce a new program designed to provide employers with a treatment plan for success. The 29th Annual Employment Law Update – Your Prescription for Compliance will be held at the Greater Richmond Convention Center on Thursday, April 11th.
The K&C Employment Law Team and representatives from a number of government agencies will present a variety of educational workshops designed to prescribe solutions for your employment law maladies. This program will also feature a special luncheon presentation by Gary Namie, Ph.D., a nationally recognized expert on how to prevent workplace bullying and Director of the Workplace Bullying Institute. Additional topics include Healthcare Reform; Dealing with Problem Absenteeism; Safe Interviewing/Hiring Practices; Handling Theft and Drugs in the Workplace; Employee Discipline & Discharge; and more.
The 29th Annual Employment Law Update will help employers diagnose employment law headaches and comply with recent changes in employment law. For more information, contact Julia Rhody at (804) 771.5722.
This program has been approved for 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.