By Liz Watson and Kristen Peters

Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.

  1.  Plan Ahead
  • Maintain compliant harassment policies, provide regular harassment training covering all required topics (Seyfarth can help), and communicate the procedure for reporting complaints.
  • Determine in advance who will oversee the process for handling complaints.
  • Have a crisis management team in place in advance (generally legal, human resources, IT, and communications or public relations).
  • Identify and train internal investigators so they know how to conduct an investigation.
  1.   Initial Steps After Receiving A Complaint
  • Determine whether there is a need to conduct a formal investigation and, if so, the appropriate scope of the investigation.
  • Consider whether to place the accused on paid administrative leave pending the investigation. Some factors to consider include whether the accused poses a potential safety risk and whether having the accused in the workplace may intimidate witnesses or otherwise impede the investigation.
  • Take appropriate interim steps to prevent harassment and retaliation. For example, it may be appropriate to separate the accused and the complainant, instruct the accused not to communicate with the complainant, or to place an upcoming performance review on hold pending the conclusion of the investigation.
  • Determine who will conduct the investigation. Choose the investigator carefully, as that person may need to testify in any legal proceeding.
    • Investigators must be free from actual or apparent bias or conflict of interest. For example, an investigator should not investigate the conduct of the investigator’s superiors or friends.
    • Determine whether to retain an outside investigator. Consider whether the investigator needs a particular expertise.
    • Evaluate whether to retain a lawyer to conduct the investigation and whether the investigation will be covered by attorney-client or attorney work product privileges. The company can decide later whether to waive a privilege and rely on the investigation as part of a litigation defense.
  • Preserve evidence that may be relevant to the investigation. The evidence may include emails, texts, and internal messages. Involve IT as necessary.
  • Develop a public relations strategy if there may be potential media coverage or publicity.
  1.   The Investigation Process
  • Conduct investigations promptly. If there was misconduct, it should be corrected as soon as possible.
  • Determine an investigation plan, but remain flexible. The number of witnesses interviewed and documents reviewed should be appropriate to the situation. Facilitate the investigator’s access to the relevant witnesses and the documents.
  • An investigation is a fact-finding mission. The investigator should approach the investigation with an open mind.
  • Consider the order in which witnesses are interviewed and what information to share with witnesses. Generally a best practice is to interview the complainant first and the accused last. Witnesses should be told that the company will maintain confidentiality consistent with the need to investigate.
  • Prepare notes contemporaneously or soon after the interviews. Document key quotes and any admissions made. Be thoughtful about your notes, as they may be discoverable if the matter results in litigation. Decide whether to have the witnesses submit or sign statements.
  1.   Reporting the Findings
  • Determine whether a written report is necessary for all or parts of the investigation and, if so, what level of detail is appropriate for the report.
  1.  Determine Who Will Decide and Take Appropriate Corrective Action
  • Generally the decision-makers should not be lawyers.
  • Corrective action may include, for example, discipline, coaching, further training, and other steps to prevent future harassment and retaliation.
  1.   Close Outs And Other Follow Up After The Investigation
  • Inform employees involved with the investigation that the investigation has concluded and that the company has taken appropriate action. The company may not be able to share more information due to privacy concerns.
  • Instruct employees to report any further concerns through the appropriate complaint channels.
  • Remind them that company prohibits retaliation. Instruct employees to report any retaliation promptly.

Workplace Solutions: While is there is no “right way” to conduct an investigation, all investigations should (1) start with an investigation plan that may include interviewing the material witnesses and reviewing key documents, (2) be conducted as promptly as reasonably possible, (3) be conducted by a trained, impartial investigator, (4) be documented appropriately, (5) be followed by appropriate corrective action and steps to prevent harassment and retaliation, and (6) appropriately inform employees when the investigation has closed.

Edited By: Coby Turner

By Jay Connolly & Aaron Belzer

As cannabis growers and retailers struggle with the complex and onerous regulatory scheme governing California’s emerging legal marijuana marketplace, they may be excused for overlooking the requirements of California Safe Drinking Water and Toxic Enforcement Act of 1986—more commonly known as Proposition 65.  Neither the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), nor its implementing regulations, reference or suggest that cannabis growers or retailers are subject to Proposition 65.  Yet, Proposition 65 plainly applies to cannabis and cannabis products, and ignorance of its requirements can prove costly to fledgling and established cannabis businesses alike.

Proposition 65 requires California to publish and update annually a list of chemicals known to the State to cause cancer, birth defects or other reproductive harm (the “Listed Chemicals”).  It further requires businesses to provide “clear and reasonable” warnings to California residents before exposing them to one or more of the over 900 Listed Chemicals above the established regulatory “safe harbor” levels.  Such exposures can be from consumer products, in workplaces or in the environment and therefore require different types of warnings.

Proposition 65 is enforced entirely through litigation; it vests the Attorney General with primary enforcement responsibility, but also allows any individual or organization “acting in the public interest” to sue a business for purported violations, and seek penalties of up to $2,500 per violation per day.  Because private enforcers can potentially recover their attorney fees and 25% of any penalties assessed, Proposition 65 has spawned a cottage industry for “bounty hunter” plaintiffs who pursue costly enforcement actions against unwary businesses that fail to warn of potential exposures to even trace amounts of a Listed Chemical.

Cannabis and cannabis products are not immune from these enforcement actions.  Since California added “marijuana smoke” as a Listed Chemical in 2009, cannabis and cannabis products have become notable targets for enforcement—a trend that has only increased since California passed Proposition 64 legalizing recreational marijuana use effective January 1, 2018.  Over the past four years, for example, private enforcers have issued over 800 Proposition 65 notices of violation to cannabis businesses alleging violations of Proposition 65’s warning requirements.  And while “marijuana smoke” is an obvious target for enforcement, other Listed Chemicals commonly found in both edible or smokable cannabis products, including “beta-Myrcene” and “isoprene” (common hydrocarbons found in cannabis plant oils), and “Myclobutanil,” and “Carbaryl” (pesticides and fungicides used to grow cannabis plants), can also be targets for enforcement.

To avoid becoming a target for enforcement, prospective and licensed cannabis businesses should add Proposition 65 to their legal and regulatory compliance checklist.  To that end, the Proposition 65 regulations clarify the relative warning responsibilities between product manufacturers, producers, packagers, importers, suppliers, distributors (“Upstream Entity(ies)”) and retail sellers of consumer products.  Specifically, the regulations require Upstream Entities subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials for retail sellers to display and maintain.

A retail seller, in turn, is independently responsible for providing a Proposition 65 warning only when: (1) it sells the product under its own (or an affiliate’s) brand or trademark; (2) it introduces or creates the Listed Chemical in the product itself; (3) it fails to display or obscures the product warning provided by an Upstream Entity; or (4) it has “actual knowledge” of the potential exposure and an Upstream Entity cannot be readily compelled to provide the warning (a potential “gotcha” situation).

The regulations also provide specific, detailed non-mandatory guidance for the content of Proposition 65 warnings for a wide variety of exposures, including consumer product exposures, occupational exposures, and environmental exposures.  The regulations further provide additional non-mandatory guidance for the method by which a business may provide the warning for various exposure types—whether resulting from the acquisition, purchase, storage, consumption or use of a consumer product, or from contact with an environmental source, such as ambient air.

Although businesses are not required to use the warning content or methods set forth in the regulations, doing so is the only way in which to ensure compliance with Proposition 65.  And while Proposition 65 may not be as complex as the MAUCRSA and its implementing regulations, Proposition 65 is sufficiently complex and nuanced that cannabis businesses should carefully review their requirements, determine their warning obligations, and develop and implement a reasonable and practical compliance plan.  Indeed, as many cannabis operators have already discovered, one ignores Proposition 65 at one’s own peril.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is a partner in the firm’s Los Angeles office.  They regularly represent and advise clients in Proposition 65 matters and developments.  If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com or Aaron Belzer at abelzer@seyfarth.com

By Christopher Truxler & Nicole Baarts

Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.

“If I had a gun with two bullets and I was in a room with Hitler, Bin Laden, and Toby, I would shoot Toby twice.”

Popular culture is rife with amusing expressions of office tension that can provide healthy relief to real world frustration. But as comical as some might find the antics of The Office’s Michael Scott, no one wants to witness these sort of threats in person. Although California law arms employers with strict laws to prevent workplace violence, to best protect the workplace, employers should proactively manage the possibility of violence rather than waiting for a threat to appear.

California Civil Procedure Code section 527. 8 defines workplace violence as assault, battery, or stalking, and permits employers to obtain a restraining order against “any individual” who makes a credible threat of violence that can reasonably be construed to be carried out at the workplace. It also empowers employers to obtain a court order requiring those who threaten violence to temporarily turn their weapons over to the police or sell or store their weapons with a licensed gun dealer. And if a restrained person violates the court’s temporary order, the District Attorney may press criminal charges.

But let’s face it: no one wants to get to this point. Luckily, there are several things employers can do to manage workplace violence before everyday frustrations snowball into a credible threat of violence.

“At least we care enough about our employees that we are willing to fight for them.”

First, implement a companywide workplace violence policy. According to the Bureau of Labor Statistics, over 70 percent of U.S. workplaces lack a formal policy that addresses workplace violence. Without guidance from employers on how to address troublesome coworkers, employees may unwittingly escalate the threat of violence by responding on their own. The company should maintain an environment that minimizes isolation and resentment and that fosters open communication.

Second, be on the lookout for early warning signs and encourage employees to report threats or symptoms of violence. These signs may include a recent life- or mind-threatening illness, expressions of paranoia or persecution, and the deterioration of workplace friendships. Most of all, listen to your employees. If they bring a threat posted on social media to your attention, ask Human Resources to investigate. And be sure to address and document problematic behavior as it occurs.

Third, if a credible threat is made, immediately alert security or the police, collect all relevant evidence, and seek legal advice to assist with an appropriate response, which may include petitioning the court for a temporary restraining order. At the same time, ask Human Resources to investigate (if HR has not already done so) and consider retaining an outside firm to conduct an independent threat assessment. Typically, this process involves an independent investigation into the suspect as well as a workplace inspection to identify points of vulnerability, such as unmonitored entrances into the workplace. An independent threat assessment may reveal that the suspect does not pose a credible threat. On the other hand, the assessment may reveal that serving the suspect with court papers may increase the risk of violence. Conducting a thorough threat assessment should allow the employer to put in security measures by the time any temporary restraining order is served.

Fourth, remember that workplace violence restraining orders can also protect more than the workplace and extend to threatened employees’ homes, family members, cars, and even their children’s school.

Workplace Solutions: Protective orders provide an invaluable defense to credible threats of workplace violence; but employers should proactively manage the specter of workplace violence before it occurs rather than waiting for a legitimate threat to emerge. Many incidents of workplace violence are preventable (or at least controllable) through the implementation of company policies and by remaining aware of possible warning signs. If you have any questions about workplace violence, we recommend that you speak to your favorite Seyfarth attorney, as we are well experienced in this area. We hope you never need a restraining order. But if you do, we’ll guide you through what can be a nerve-wracking experience.

Edited By: Coby Turner

By Annette Tyman, Randel K. Johnson, and Michael L. Childers

Seyfarth Synopsis: The U.S. District Court for the District of Columbia vacates the Office of Management and Budget’s (OMB) prior order staying the implementation of the revised EEO-1 Report which required employers to report W-2 wage information and total hours worked.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (OMB) stayed the implementation of the pay data collection portions of the revised EEO-1 Report. That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.

In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. We anticipate that the Court’s decision will be appealed.

Seyfarth Shaw offered testimony on behalf of the U.S. Chamber of Commerce and submitted comments on the revised EEO-1 Report outlining the employer community’s significant concerns with the burden, benefit, and confidentiality of the proposed changes. In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate along with a supporting declaration and testimony regarding the burden estimates which helped prompt OMB’s decision to suspend the implementation of the pay data collection requirement.

Impact to Employers

The Court’s decision has significant implications for employers. As we have previously reported, the current EEO-1 Report filing deadline is on May 31st. That filing did not envision the collection of pay data.

We anticipate that the EEOC will issue a statement to employers regarding the stay with further direction regarding the implementation date of the pay data collection component of the EEO-1 Report in the very near future. It is highly unlikely that employers would be required to provide the required pay data during the May 31st reporting cycle.

We will continue to monitor the situation and will provide updates as they become available.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Organizational Strategy & Analytics or Labor & Employment Teams.

 

By Ronald Gart and Christa Dommers

Seyfarth Shaw LLP has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year’s survey revealed that, despite the dramatic increase in the number of states legalizing marijuana, 85% of respondents are putting the brakes on investing in cannabis use real estate or leasing space to the cannabis industry. This is not surprising, given the current state of federal law, lack of credit availability from financial institutions, and lack of title insurance.

What about the other 15% who do plan on investing in CRE for marijuana use? Most (70%) do not plan to invest anytime soon, indicating an investment horizon of at least 2-5 years. Notably, however, 20% of those respondents planning to participate in the industry already have their hands in the pot business.

View the full survey results

 

By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Latoya R. Laing and Erin Dougherty Foley

Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.

Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.

Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:

Employee Opt-Out

The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:

  • 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
  • 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
  • 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
  • 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)

Statute of Limitations

Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).

Notice Requirement

The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.

The Illinois Human Rights Commission

The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:

  • Decreasing the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.

Charge Proceedings

In an effort to create more transparency in Commission and IDHR proceedings the statute provides new requirements for how claims are processed, litigated, decided, and ultimately published.

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute now requires that Commission decisions are based on neutral interpretation of the law and the facts.
  • The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

775 ILCS 5/7-109.1 – 5/8B-103

Employers Covered under the Act

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.

More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.

Still have Questions?

Consider signing up for the March 14, 2019 “What’s Happening in Illinois” Breakfast Briefing that will be conducted at Seyfarth’s Chicago office.

In the meantime, for more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

 

By Brent I. ClarkBenjamin D. BriggsMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis:  A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through.  The contractor later testifies in a deposition that he did not ask them to work on the roof.  Lesson No. 1: don’t lie when you’re providing sworn testimony, especially when there exists discoverable evidence to the contrary.  Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

Between May and July 2018, New Jersey-based RSR Home Construction was cited twice by OSHA after two incidents on the same job in which workers fell from a roof and were seriously injured.  As part of its investigation into the safety incidents, OSHA took the sworn deposition of the company’s owner, Robert Riley.

According to the criminal complaint filed against RSR earlier this month in Federal District Court in New Jersey, OSHA specifically questioned Riley at his deposition about whether he had directed a construction worker, at any time, to perform repairs on the roof, or to direct others to perform repairs to the roof.  United States v. Riley, No. 19-MJ-3515 (D.N.J. Feb. 14, 2019).  Riley testified, unequivocally, that that he had not.

OSHA, however, discovered that Riley had in fact sent text messages to employees on both occasions directing them or others to perform repairs on the roof.  Riley now faces a perjury charge in federal court where, if convicted, he faces a potential penalty of five years in a prison and a $250,000 fine.

For employers, this case provides yet another reminder that it is never a good idea to lie to government inspectors, especially when providing sworn testimony.  This also demonstrates the importance of being properly prepared and familiar with all relevant facts before providing testimony or statements during an OSHA investigation.  In this age of electronic media, emails, video, and text messages, data is simply too readily available to those parties needing it to prove the truth.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

 

By Kyla J. Miller and Erin Dougherty Foley

Seyfarth Synopsis: According to the 4th Circuit, a female employee who was subjected to false rumors that her promotion was a result of sleeping with the boss can levy her claim for sex-based discrimination against her employer. The Court held that the Company served as a catalyst for the gossip stemming from one jealous co-worker, and held that these types of rumors are inherently based on sex stereotypes regarding women’s advancement and role in the workplace.

A three judge panel for the 4th Circuit found that subjecting a female employee to false rumors that she had an affair with her boss to obtain a promotion could violate Title VII. Parker v. Reema Consulting, No 18-1206 (4th Cir. February 8, 2019). Plaintiff–a warehouse manager–was good at her job. So good, in fact, that she climbed her way to the top at an unmatched speed. Starting as an entry level clerk, over the course of two years she managed to receive six separate promotions that led her to a management role.

But as they say–success attracts envy. Two weeks after receiving her latest promotion, a male colleague, who had started at the same time as Plaintiff but had trailed behind her in his own advancement, started a rumor that Plaintiff was having an affair with the boss who promoted her. The rumor was not true, yet it spread like wildfire. Soon, the highest ranked manager at the company started engaging in the gossip. After the rumor spread, Plaintiff alleged that her male coworkers treated her with hostility and disrespect, and that the manager himself accused Plaintiff of “bringing the situation to the workplace” after she requested a meeting to discuss her concerns. The manager also stated he could not recommend her for promotion and that he should have fired her when she started “huffing and puffing about the BS rumor,” according to the Complaint.

Plaintiff brought a claim to Human Resources about the situation. According to the Company, they held a meeting with all management, including Plaintiff, to defuse the situation, then ordered all employees participate in sexual harassment training. Despite that, the manager later fired Plaintiff, stating she created a hostile work environment for the employee who started the rumor, and blaming her for insubordination.

Plaintiff sued the company for sex discrimination and retaliation under Title VII, including a claim for hostile work environment. The District Court tossed the hostile work environment claim–finding that mere bullying and harassment based on the false rumor was not based on her sex. In his opinion, the Judge stated, “the problem for Ms. Parker is that her complaint as to the establishment and circulation of this rumor is not based upon her gender but rather based upon her alleged conduct, which was defamed by, you know, statements of this nature.” He went on to explain, “clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It is based upon false allegations of conduct by her.”

Plaintiff appealed–now grabbing the attention of the EEOC and 50 women’s and equal rights groups who filed amicus briefs on her behalf. On appeal, the crux of Plaintiff’s argument was that the rumors were grounded in traditional sex stereotypes regarding women’s advancement and role in the workplace. The rumor stemmed from a male subordinate who was jealous that Plaintiff was advancing quicker than her male counterparts–an idea that by its nature implicated sex. Further, Plaintiff argued that the reaction her superiors had to the rumors–especially the disparate treatment and hostility that resulted from it–further demonstrated how intertwined her gender was to the harassment.

The 4th Circuit agreed. Siding with Plaintiff, the Court found that the rumor implied that Plaintiff “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” The 4th Circuit found it plausible that this rumor invoked a perception that generally women, not men, use sex to achieve success. And it is this double standard that subject women, not men, to perceptions that they will sell their bodies to get ahead. The rumor’s sexual undertone was enough to find Plaintiff plausibly alleged she suffered harassment because she is a woman.

Takeaways

In the age of #MeToo, it is critical employers stay on top of rulings that implicate hostile work environment claims. As this case demonstrates, courts are increasingly leaning towards a finding that stereotypes that could be associated generally with one gender over the other are intertwined with “sex” for purposes of Title VII. Employers should be aware that rumors about women “sleeping their way to the top” may very well implicate sex stereotypes. Quashing these types of rumors and ensuring management handle the situation appropriately is critical to avoiding vulnerability to Title VII claims about workplace gossip.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Brent I. Clark, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties. Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).

A recent decision from the U.S. Court of Appeals for the Fifth Circuit highlights the risks posed to employers in the healthcare and social assistance industries by uncorrected or unaddressed customer-on-employee violence.

Fifth Circuit Reverses Lower Court’s Summary Judgment Ruling

Gardner involves a nurse who alleged that an assisted living facility allowed a hostile work environment to be created by nonemployees by not preventing a resident’s repetitive harassment. The plaintiff, a Certified Nursing Assistant, “often worked with patients who were either physically combative or sexually aggressive.”

The Court explains that under 29 C.F.R. § 1604.11(e)—one of Title VII’s sexual harassment provisions— “an employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Gardner’s experiences with one patient at the CLC facility rose to a new, dangerous level. According to the Court, “[the patient] J.S. was an elderly resident who lived at Plaza between 2006 and 2014. He had a reputation for groping female employees and becoming physically aggressive when reprimanded. J.S. had been diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.” J.S. had a long history of violent and sexual behavior toward both patients and staff at the facility.

Gardner refused to care for J.S. again due to the continued harassment, and asked to be reassigned. Her request was denied. She ended up going to the emergency room for injuries she sustained at the hands of J.S., and did not return to work for three months. Shortly after her return, she was fired.

In reversing the district court, which had concluded that a hostile workplace did not exist, the Fifth Circuit held that the “evidence of persistent and often physical harassment by J.S. is enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser.”

Customer-on-Employee Violence in the OSHA Context

Federal OSHA currently enforces workplace violence via the General Duty Clause, under which OSHA requires employers to take affirmative steps to protect their employees. Significantly, and unsurprisingly, OSHA has also considered whether to commence rulemaking proceedings on a new standard for preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients and clients. Prevention of Workplace Violence in Healthcare and Social Assistance, 81 Fed. Reg. 88147 (December 7, 2016).

Additionally, note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and are required, as of April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

Workplace violence may affect numerous healthcare and social assistance workplaces, including psychiatric facilities, hospital emergency departments, community mental health clinics, treatment clinics for substance abuse disorders, pharmacies, community-care facilities, residential facilities and long-term care facilities. Professions affected by the proposed rulemaking include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses, home healthcare workers, social and welfare workers, security personnel, maintenance personnel, and emergency medical care personnel.

According to OSHA, workers in the Health Care and Social Assistance sector (NAICS 62) face a substantially increased risk of injury due to workplace violence. In 2014 data from the Bureau of Labor Statistics’ (BLS) Survey of Occupational Injuries and Illnesses (SOII), workers in this sector experienced workplace-violence-related injuries at an estimated incidence rate of 8.2 per 10,000 full time workers, over 4 times higher than the rate of 1.7 per 10,000 workers in the private sector overall. Individual portions of the healthcare sector have much higher rates. Psychiatric hospitals have incidence rates over 64 times higher than private industry as a whole, and nursing and residential care facilities have rates 11 times higher than those for private industry as a whole. In 2014, 79 percent of serious violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients.

State and Federal OSHA has clearly been keeping an eye on this industry and these incident rates. For instance, in August 2016 we blogged about how “NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers,” in December 2015 we noted that “OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting,” in July 2015 we blogged that “Healthcare Employers to Get Even More Attention from OSHA,” and in April 2015 we blogged that “OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers.” Also, this action follows on “CA Nears Adoption of New Workplace Violence Regulations for Health Care Employers, Home Health Providers, and Emergency Responders.”

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.