Employment Law Update – Winter 2018
EEOC READY FOR “GENDER QUAKE” 2.0 AFTERSHOCKS
It seems like almost every week a new public figure is “going down in flames” due to workplace harassment allegations. Household names like Ailes, O’Reilly, Weinstein, Rose, Lauer, and so many more have been highlighted in the media in very negative ways. Not since Supreme Court nominee Clarence Thomas was accused of sexual harassment by Anita Hill has the national media been so focused on workplace harassment. The result from that original “Gender Quake” was a heightened awareness of workplace harassment and a marked increase in workplace harassment claims. Similarly, some experts are predicting a “tsunami” of discrimination claims will result from the recent media coverage of allegations against many powerful public figures (“Gender Quake 2.0”).
Perhaps more due to happenstance than design, the Equal Employment Opportunity Commission (“EEOC”) is more ready than ever to handle the predicted increase in harassment claims from “Gender Quake 2.0.” First, in November, the EEOC updated its sexual harassment guidelines for the first time in over twenty years. To review these guidelines click here. According to EEOC Commissioner Chai Feldblum, the EEOC has been working on these revisions since 2015, so while these changes appear very timely, it is somewhat coincidental that the updated guidelines were approved on November 7, 2017. These guidelines will help employers understand what behavior the EEOC views as illegal, but as recently noted by Anita Hill, who is now a law professor, unacceptable workplace behavior may also include workplace bullying which may not be illegal but can lead to serious morale issues. To help reduce both illegal harassment and bullying, the EEOC has ramped up it’s “respectful workplace” training for employers.
To further facilitate handling more claims, the EEOC announced recently that it has reduced its backlog of charges and rolled out a new online filing system that will allow workers nationwide to ask the EEOC about potential bias and file discrimination charges electronically. Shortly after the November 1 rollout of this new online filing tool for employees, the EEOC Deputy Director out of their Charlotte Office, Thomas Colclough, updated attendees at the November 16 showing of the 34th Annual Employment Law Update on this new development. Mr. Colclough told HR professionals in attendance that online filing would make the filing process more efficient and consistent with the EEOC’s attempts to provide electronic access to the charge process for both employees and employers.
As a result of “Gender Quake 2.0,” employers need to be particularly aware of legal and morale issues that “toxic” employees can create. To help employers in that regard, the Deputy Director/Charlotte for the EEOC, Tom Colclough, will again be presenting at the March 22nd showing of the 34th Annual Employment Law Update at the Richmond Convention Center. Not only will he provide insights regarding the EEOC and avoiding legal liability, but he and other speakers will also focus on the morale problems that can also be created by “toxic” employees.
HARASSMENT TRAINING ON THE RISE
One of the reactions that employers have had to “Gender Quake 2.0” has been to conduct training to make sure their supervisors are more aware of employment law risks so these risks can be avoided. In this regard, the Kaufman & Canoles Employment Team has certainly noticed an increase in the number of training sessions we have been asked to conduct for Virginia employers. But to further verify this trend, we contacted Mauricio Velasquez, President of The Diversity Training Group located in northern Virginia. Mauricio confirmed that he too has noted a marked increase in requests for training on topics such as sexual harassment prevention and more general training on ensuring that workplaces are more civil or respectful. Since a number of the recent publicized incidents have involved powerful individuals who have allegedly mistreated employees, Mauricio has also predictably received more requests for training on how to handle “toxic” individuals and “toxic” workplaces. Mr. Velasquez stated that the increase in requests for such training has been significant and national in scope. In that regard, he has recently been contacted by CBS News regarding a possible national television interview regarding the increase in claims and requests for training resulting from “Gender Quake 2.0” events.
It should be noted that not only are law firms and companies like The Diversity Training Group intensifying their efforts to provide training geared to avoid workplace harassment claims, but so is the U.S. Equal Employment Opportunity Commission (EEOC). This past November, the EEOC rolled out two new training modules focused on more respectful workplaces-one for supervisors and one for all employees. Such training sessions are always more effective if they are as interactive as possible, so the EEOC is limiting the size of training sessions to accommodate no more than thirty participants at a time. Much larger groups many times result in fewer questions and less participation from employees receiving the training. Also, in some cases, individual coaching may be necessary to deal with a particularly toxic employee.
Since avoiding employment law liability is a primary goal of the 34th Annual Employment Law Update, workshops geared to avoid workplace harassment risks will be presented as part of the March 22, 2018 showing of this day-long program at the Richmond Convention Center. Mauricio Velasquez will not only be featured as a luncheon speaker on diversity, but he will also present a workshop on how to deal with “toxic” employees. Also, representatives from the EEOC will be available to discuss their management training efforts.
NEW OSHA PENALTIES NOW IN EFFECT
All Virginia employers are subject to penalties for violation of OSHA safety standards. Effective July 1, 2017, those penalties took a significant leap from a maximum of $7,000 for a serious or other than serious violations (usually recordkeeping or other paperwork) to $12,471. In keeping with the same percentage increase, the maximum penalties for repeat or willful violations have increased to an eye-catching $124,709 per violation. Reductions to these amounts may be available due to employer size, a good safety history, and the gravity of the violation, meaning the likelihood of an injury occurring and how serious it would likely be.
The Virginia Department of Labor and Industry, Occupational Safety and Health Division (VOSH) enforces these penalties. When contacted for this article, Regional Director Jeannie Buckingham confirmed that VOSH is applying the increased penalty levels to private sector employers and that these monetary penalties will soon apply for the first time to public sector employers. The exact date of implementing public sector monetary penalties has not yet been determined.
ADA MAY REQUIRE EMLOYERS TO ALLOW PETS AT WORK
Pet-friendly workplaces are becoming increasingly common, but for some employees having Fido tag along to work may not just be a workplace benefit it may be a workplace right protected by the Americans with Disabilities Act (“ADA”). Animals, especially dogs, are trained and used for a myriad of reasons beyond the familiar seeing-eye dog. Animals can pull wheelchairs, help around the house or office by retrieving items, alert their owner to low blood sugar or an impending seizure, and comfort their owner during emotional disturbances. Increasingly, dogs and other animals are taking a prominent role in assisting individuals with disabilities.
Although Title I of the ADA does not expressly mention the use of service or assistance animals in the workplace, an employee’s request to bring an animal to work should be treated as any other request for a disability-related reasonable accommodation. For employers, this means that instead of answering such a request with an automatic “no,” employers should engage with the employee in a dialogue about the requested accommodation, a conversation otherwise known as the “interactive process.” During this process, employers may ask for more information and documentation to substantiate the employee’s need to use the animal at work, and the employer may consider if allowing the employee to bring the animal to work is reasonable. Employers also have the right to explore alternative accommodations without the use of the animal, though employers should be aware that it may be difficult to locate an alternative with animals who perform specific tasks such as alerting the owner to an impending seizure.
During the interactive process, employers should be on the look-out for conflicts with other employees regarding animals in the workplace. If an employer grants a disability-related request to bring an animal into the workplace, the employer should set ground rules with the employee about where the animal may be, how other employees may interact with the animal, how the animal will behave in the workplace, and breaks for the owner to take the animal outside.
K&C EMPLOYMENT LAW SEMINAR – RICHMOND SHOWING
The Richmond showing of K&C’s 34th Annual Employment Law Update will be held on March 22nd at the Greater Richmond Convention Center. This day-long seminar on timely employment law topics will feature members of the K&C Labor & Employment Team and speakers from several key employment law agencies including the Equal Employment Opportunity Commission (EEOC), the Virginia Employment Commission (VEC) and the Virginia Department of Labor and Industry (VDOLI).
This year’s seminar will include some of the hottest topics in employment law like workplace harassment and other helpful employment law workshops including; Effective Documentation, Dealing with Toxic Employees, Problem Absenteeism, and Handling Unemployment Claims. A number of entertaining videos will be mixed in with the legal updates to keep the day going. In addition, attendees will have the opportunity to have any and all employment law questions answered by employment specialists throughout the day in the ever-popular K&C “Answer Booth.”
Attendees can earn 6 HRCI credits and 5 SHRM PDCs, and one lucky winner will win a $350 gift card to host his/her own “office party” at one of Richmond’s hottest new party venues, The Quirk Hotel. For more information, or to register, visit www.kaufcan.com/events or contact Caitlyn Anderson at 757.624.3232.
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 2021.