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 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.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Last month at the 2018 National Safety Council (NSC) Congress the speakers noted that “safety programs shouldn’t end when employees walk out the door and get into a vehicle to drive.”  The session was presented by Karen Puckett, the Director for the Center for Environmental Excellence Division of Enterprise Development at the University of Texas at Arlington, and Lisa Robinson, Senior Program Manager for Employer Transportation Safety, for the NSC. 

National Highway Traffic Safety Administration statistics provided that in 2017 transportation deaths from crashes were the leading cause of workplace deaths in the USA.  These statistics are often lost on safety professionals because OSHA has no jurisdiction over transportation incidents on public roads.  Additionally, 2016 Bureau of Labor Statistics data show that 40% of employment fatalities were due to transportation incidents.

Puckett noted that the goal for the NSC’s program was to have considered the best practices for employees who drive for work.  This employment-based driving included not just fleet trucks and other vehicles, which are normally considered in company employee driving policies and training programs, but also any personally-owned employee vehicles and rental cars, vans, and other trucks that employees may use while doing company business.  Puckett explained that vehicles outside of the regular company fleet are often overlooked.

Puckett’s key takeaway was that the company’s personnel policy on driving and accident prevention and the related training materials and systems need to incorporate a recognition of these powerful statistics.  Employers need to build a workplace that promotes responsible driver behaviors, maintenance procedures and records, and effective training programs.

Robinson noted that the employer may also face considerable liability for any fatalities that come from employees driving on company business, however that is demanded by state law in the many states and localities the company may operate in.  Perhaps common sense behaviors for employee drivers to know are company policies prohibiting driving impaired by drugs or alcohol, driving while using a cellphone such as checking email, texting, or using the phone.  Many company policies do not incorporate these kinds of prohibitions.

Robinson concluded by illustrating numerous multi-million dollar jury verdicts and settlement agreements where employers were held responsible — even some where the employee was involved in activities or behaviors that some might reasonably suggest were not in the line of their employment.

For your further information, we have previously blogged on these related issues, including Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job, President Declares “National Impaired Driving Prevention Month”, Asleep at the Wheel: Trucking Company’s Sleep Apnea Policy and Procedures Reviewed by Federal Courts, Impact of Driver Compensation on Commercial Motor Vehicle Safety, Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Done by Intoxicated Employee, Employees Driving In Illinois? What Employers Need to Know, and Distracted Driving Leads to Employee Accidents and Fatalities.

Employer Takaway

For employers the key points from this session are that employee behavior on public roadways could have a big impact on the workplace.  The employer should have appropriate policies and training systems in place as part of a comprehensive safety program, with an aim to “improve your workplace driving safety culture.”

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) or Workplace Policies and Handbooks Teams.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week at the 2018 National Safety Council (NSC) Congress the speakers on this Executive Forum noted that “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – emerging technologies are now almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  The session was presented by Michelle Garner-Janna, CSP, CPE, Executive Director – Corporate Health & Safety, at Cummins, and Lydia Boyd Campbell, MD, MPH, Chief Medical Officer, at IBM.

In her presentation Garner-Janna noted that Cummins is a global power leader with 60,000 employees spread around the world in 190 countries.  The company has worked to develop its health and safety programs for what she deemed “Industry 4.0”, advanced systems which incorporate (1) a secure network; (2) standard safety core systems; (3) Internet of Things (IoT) connectivity; (4) advanced technology mobile virtual reality (VR)/augmented reality (AR); and (5) big data advanced analytical systems.  An example of the Industry 4.0 at work is the company’s Powered Industrial Vehicle Positioning System, known as Essensium.  The Essensium System is an automated and augmented reality system used to move unmanned powered industrial trucks through warehouses in materials handling and storage functions.

Garner-Janna explained the Industry 4.0 systems being explored are exoskeletons and wearable technology.  The company is also currently trying out a VR system to provide health and safety training at a facility in China.

Campbell indicated that IBM has 380,000 employees.  Health and Safety personnel represent less than 6% of those employees onsite, and there is one H&S employee for every 1000 employees.  To compensate for reduced safety staffing, IBM’s H&S services group has been developing an integrated artificial intelligence system based on its “Watson” application.  With this system, the company has set-up a World-wide H&S call center in India that receives telephone calls and emails relating to safety and health concerns, translates the many languages, and routes the issues to “the right people” to work on resolution.  The Watson based system is also analysing the “tone” of callers’ voices to make sure that potentially high level of stress or problems are escalated appropriately.  The system is also now being reprogrammed to flag and handle personally sensitive data that employees may try to submit.

The emerging technologies and issues raised by speakers from Cummins and IBM demonstrate the changing nature of the safety environment and opportunities for safety professionals and employers to incorporate changing technology and big data into their approaches to protect employees.  These developments should be closely monitored by employers.

We have previously blogged on automation and issues related to the future of safety technology, including Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry, A Global Perspective on the Future of Wearable Technology, An Aging America and the Future of Paid Family Leave, and Robotics, Automation, and Employee Safety for the Future Employer.

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) or Workplace Policies and Handbooks Teams.

By Linda Schoonmaker and John P. Phillips

Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training—to proactively ensure that harassing conduct does not occur in their workplaces.

When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. In other words, the employer must have knowledge of the harassing conduct (either actual or implied—companies cannot hide their heads in the sand) before it can be held liable.

In a recent decision, however, the Eleventh Circuit Court of Appeals held that use of the N-Word on one occasion could create a hostile work environment, and the Court held that the employer could be held liable even though the plaintiff admitted that she never complained about alleged harassment until (allegedly) right before her termination. (In fact, the company denied that she ever complained at all.)

Given the increased media focus on workplace harassment, this case provides a good opportunity for employers to review their anti-harassment policies and procedures, in order to proactively ensure that harassment-related issues do not proliferate in the workplace.

Background on the Case

In Smelter v. Southern Home Care Services, Inc., the plaintiff had been hired by Southern Home Care Services in July 2013 as a customer service supervisor. As part of her job, the plaintiff was responsible for coordinating with caregivers and clients, scheduling in-home visits, and accurately recording all caregivers’ work time. There was no dispute that the plaintiff required extra training and committed many mistakes during her employment. In September 2013, she was terminated for poor performance, after a final incident in which she got in a heated argument with and yelled at a co-worker. Following her termination, the plaintiff asserted the following allegations:

  • She had endured racist remarks from her co-workers nearly every day during her employment.
  • During the argument with her co-worker on the last day of her employment, her co-worker had called her a “dumb black [N-Word].”
  • Her co-workers had made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes.
  • Her supervisor thought the racist comments were funny.

Although the plaintiff admitted that she had never complained about any of the comments prior to the final incident, the plaintiff alleged that she had told her supervisor about the harassment before she was terminated. Her supervisor claimed that she never complained about any race-related comments, and the plaintiff’s exit interview paperwork—which both the plaintiff and her supervisor signed—had no mention of any harassment-related complaints.

Ultimately, the district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the company had no knowledge of the alleged harassment. The plaintiff appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

On appeal, the Eleventh Circuit reversed the district court’s dismissal of the plaintiff’s hostile work environment claim. In doing so, the Eleventh Circuit made two significant holdings:

First, the Court held that even standing alone, the single use of the N-Word was sufficient to constitute severe harassment. The Court explained:

Southern Home argues that [the co-worker]’s “one-time use” of [the N-Word] was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.

The Court also held that the other comments alleged by the plaintiffs were similarly sufficiently severe to create a hostile work environment, and consequently, the plaintiff had alleged a legally actionable hostile work environment claim.

Second, the Court disagreed with the district court that the employer did not have knowledge of the alleged harassment. Although it was undisputed that the plaintiff failed to report any harassment until the final day of her employment (and the company disputed whether she had even reported it then), the plaintiff had alleged that the racist slurs were “funny to everybody that worked in the . . . office,” including her supervisor. The Court found that this was sufficient evidence to hold that the supervisor had knowledge of the comments, since she could not have found the comments funny if she did not hear them.

Thus, the Court found that the plaintiff had alleged an actionable hostile work environment claim, and it remanded the case to the district court for trial.

Takeaways

In light of this decision and the increased awareness of improper workplace conduct stemming from the #MeToo movement, there are a number of proactive steps that employers can take to help ensure that their companies have the proper culture to avoid harassment complaints and allegations:

  • Review and revise, if necessary, the No Harassment Policy. Most companies have No Harassment Policies (and if your company doesn’t, it should). However, often those policies have not been updated in a number of years. Now is a good time to pull out the policy, review it, and make any necessary updates, including ensuring that there are clear, and multiple, avenues for employees to report harassment.
  • Train your managers and supervisors. Your supervisors are your most effective buffer against employment law-related allegations and lawsuits, and they serve as a conduit between the company and its employees. Managers and supervisors should get regular anti-harassment and other employment-law based training, in order to ensure that they will know when harassment is occurring and will know what to do if they spot inappropriate conduct.
  • Focus on proper documentation. In conjunction with training your supervisors and managers, documentation issues should be covered. To defend any lawsuit, you must have good documentation. Your supervisors should be trained on correctly documenting all employment actions.
  • Promptly investigate and correct any complaints of harassment. Once the company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. In doing so, it is important to take all allegations and complaints of harassment in the workplace seriously, immediately perform a thorough and complete investigation of any harassment complaints, and implement swift, appropriate, and proportional remedial action, if necessary, including possible termination or suspension.

Over the past year, workplace harassment issues have increasingly grabbed headlines. While all employers can agree that use of the N-Word is especially egregious, employers must take steps to ensure that such conduct does not occur. More importantly, employers must ensure that they have the policies and procedures in place to prove that such conduct did not occur. This means having an up-to-date No Harassment Policy, and supervisors and managers who are well-trained on anti-harassment and proper investigation methods. By proactively addressing any workplace harassment issues head-on, employers can put themselves in the best possible position to defend any subsequent lawsuit.

By Anne R. DanaNila Merola, and Robert S. Whitman

Seyfarth Synopsis: In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation. Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training “as soon as possible,” rather than within 30 days of hire.

Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment. Our previous Management Alerts outlining the various requirements under the law are linked here and here. On August 23, 2018, Governor Andrew Cuomo released a draft model policy and draft model internal complaint form, a draft training script, and draft FAQs. All of those draft documents were subject to public comment. On October 1, 2018, the State issued the final documents. This Alert highlights the key differences between the drafts and the final versions and consolidates the new requirements under the State law in one place.

As background, the law requires the Department of Labor and Division of Human Rights to create a model sexual harassment prevention policy and a model sexual harassment prevention training program. Those agencies have now done so: the model policy and the model training program is available here. Employers must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models. The sexual harassment policy must also include a complaint form for employees to report internally alleged incidents of sexual harassment (the model is available here). Below are further details about these requirements.

Policy and Complaint Form

Beginning on October 9, 2018, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.

For employers that opt to create their own policies, the policy must: (1) prohibit sexual harassment consistent with guidance issued by New York State; (2) provide examples of conduct that constitutes sexual harassment; (3) clearly state that sexual harassment is considered a form of employee misconduct and that disciplinary action will be taken against individuals engaging in sexual harassment and against supervisors or managers who knowingly allow such behavior to continue; (4) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful; (5) include an internal complaint form that employees can use to report conduct that they believe is sexual harassment; (6) explain that complaints of sexual harassment will be investigated promptly and that the investigations will be as confidential as possible and that the rights and interests of all parties will be protected; (7) include information concerning the federal and state laws that prohibit sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; and (8) inform employees of their right to file a complaint with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, federal or state court, or a local police department.

The final FAQs (available here) offer additional guidance for employers. Specifically,

  • Distribution: The policy must be provided to employees in writing or electronically. If the policy is made available on a work computer, employees must be able to print a copy.
  • Contractors & Non-Employees: The policy does not have to be distributed to contractors and other non-employees. However, because the State Human Rights Law has been extended to cover non-employees who bring sexual harassment claims, employers are “encouraged” to provide the policy to non-employees and anyone providing services in the workplace.
  • Complaint Form: The complaint form does not need to be included in full in the policy, but the policy should be clear about where the form may be found (g., on an internal website).
  • Investigation Procedure: The policy must describe the employer’s internal investigation procedure. The investigation procedure does not, however, have to be identical to the investigation procedure set forth in the State’s model policy.
  • Acknowledgment of Receipt: Employers are not required to obtain or keep a signed acknowledgment that an employee has read the policy, but are encouraged to do so.
  • Languages: The policy must be provided to employees “in the language spoken by their employees.” The State will publish additional model policy and complaint forms in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with an English version.
  • New Employees: New employees should receive a copy of the policy prior to commencing work.
  • Optional Poster: The State also issued an optional Sexual Harassment Prevention Policy Notice, which is a poster that employers may display in the workplace. The poster simply directs employees and non-employees to the employer’s sexual harassment prevention policy. Posting the State’s Notice is optional. A Microsoft Word version is available here.

Training

The New York State law also requires employers to provide all employees with annual, interactive sexual harassment prevention training. In a key difference between the draft and the final FAQs, the deadline for complying with the training requirement has been extended to October 9, 2019 (previously, it was January 1, 2019). Moreover, employers are no longer required to train new employees within 30 days of hire, but rather are encouraged to provide training “as soon as possible.” The practical effect of these changes is that many employers will likely want to wait to conduct sexual harassment training until after the New York City law goes into effect on April 1, 2019. Our prior Alerts on the New York City law are available here and here.

For employers that choose to create their own training rather than adopt the State’s model, the training must be interactive and include all of the following: (1) an explanation of sexual harassment consistent with State guidance; (2) examples of conduct that is considered unlawful sexual harassment; (3) information about federal and state laws covering sexual harassment and available remedies; (4) information regarding the employer’s procedure for the timely and confidential investigation of complaints, including the specific name(s) of appropriate personnel and location to submit complaints; (5) information addressing supervisor conduct and additional responsibilities of supervisors; (6) an explanation of how to raise sexual harassment complaints with government agencies and courts; and (7) prohibitions on retaliation with examples.

Additional guidance as set forth in the final FAQs regarding sexual harassment training is as follows:

  • Annual: Employees must receive training annually, which can be based either on the calendar year, anniversary date of each employee’s start date, or any other date the employer chooses.
  • Who must be trained: All workers, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers, must be trained. Non-employees, such as third-party vendors, contractors, volunteers, or consultants do not need to be trained. Employers may deem the training requirement satisfied for new employees who received compliant training from a prior employer in the past year if the new employee can verify completion through a previous employer or a temporary help firm.
  • Interactive: The FAQs offer the following examples of trainings that would meet the “interactive” requirement: (i) if the training is web-based, it has questions at the end of a section and the employee must select the right answer; (ii) if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner; (iii) for in-person training, if the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (iv) the training provides a Feedback Survey for employees to turn in after they have completed the training. An training in which the individual only watches a video or reads a document, with no feedback mechanism or interaction, is not considered interactive.
  • Languages: Employers must provide training to employees “in the language spoken by their employees.” The State will publish model training materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. When a model is not available in an employee’s language, employers may provide that employee with training in English.
  • Records: Employers are not required to maintain copies of training records, but are encouraged to do so.
  • Duration: There is no specific time requirement for the length of the training.
  • Time and Payment for Training: Any training time must be counted as regular work hours.

Non-Disclosure Agreements Involving Claims of Sexual Harassment

As of July 11, 2018, New York employers have been prohibited from including an NDA in any settlement of a claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, unless the complainant requests confidentiality.

The final FAQs clarify that the law will not operate like the analogous provisions of the Older Workers Benefit Protection Act. Specifically, waivers cannot be included in settlement agreements that can be presented and executed on the spot in a single document. Rather, if the complainant requests confidentiality, the terms must first be provided to all parties; the complainant must have 21 days to consider the provision; and, after 21 days, if confidentiality is still the complainant’s preference, the provision must be memorialized in a separate agreement signed by all parties. The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires. The 21-day review period is not waivable, so it cannot be shortened, even if the complainant so desires. The FAQs also clarify that there must be two agreements: (1) an agreement that memorializes the preference of the person who complained, and (2) the settlement agreement itself.

As always, Seyfarth Shaw attorneys are available to assist with any questions or concerns you have regarding the New York State Sexual Harassment Laws.

By Benjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a temporary employee’s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.

Nearly two years after the last bulletin, OSHA has just released two new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation. See Temporary Worker Initiative (TWI) Bulletin No. 8 – Respiratory Protection, and Temporary Worker Initiative Bulletin No. 9 – Noise Exposure and hearing Conservation.

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: “OSHA Releases Two More Temporary Worker Guidance Documents,” “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

Under TWI Bulletin No. 8, OSHA notes that both the host employer and staffing agency are “jointly responsible to ensure workers wear appropriate respirators when required. While both the host and the staffing agency are responsible to ensure that the employee is properly protected in accordance with the standard, the employers may decide that a division of the responsibility may be appropriate. Neither the host nor the staffing agency can require workers to provide or pay for their own respiratory protection when it is required.”

Under TWI Bulletin No. 9, OSHA notes that both the host employer and staffing agency are jointly responsible for ensuring that “workers receive protection from hazardous noise levels when it is required under OSHA standards. Neither the host nor the staffing agency can require workers to provide or pay for their own hearing protection devices or require workers to purchase such devices as a condition of employment or placement. In addition, employees must be paid for the time spent receiving their audiograms, and the audiograms must be at no cost to the employee.”

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are jointly responsible for temporary workers’ safety and health. However, as the two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

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 Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Philippe Weiss and Erin Dougherty Foley

Seyfarth Synopsis: In the last in a three-part series addressing sexual harassment in the workplace, we asked Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share insights from the front lines, that can help organizations credibly and effectively ensure their company culture is respectful and not tolerant of discrimination, harassing behavior or other inappropriate workplace conduct.

Q.  Based on your client and agency interactions, how have leadership and organizational mindsets changed since the rash of harassment scandals started to make national news?

A.  Daily headlines detailing high-profile harassment scandals clearly have many company executives and compliance professionals talking and worried. (Our call volume at SSAW has spiked and, notably, a significant number of callers are C-Suite members, themselves.) High-level executives have sought out our attorney-trainers and asked about strategies to avoid becoming an unwitting enabler.  We sense a wake-up call among many of those in key positions of power.

In-house legal and HR teams are reporting to us that they are now more fully appreciating how uncomfortable it can be for employees to confront those who cross a respect line and to report misconduct by higher-ups.  Organizations realize that they need real solutions that will be impactful and help reinforce a culture of non-tolerance for harassment in the workplace.

Q.  What kind of an opportunity has this created for compliance professionals? Do you and your group view the current momentum as sustainable?

A.  We see a significant opportunity for compliance professionals, as organizations are now willing to invest and prioritize harassment prevention and EEO – with longer term, comprehensive, and more strategically designed initiatives.   We have seen line items suddenly open-up in many annual budgets for compliance and conduct programming. Organizations are also increasingly investing in climate and employee surveys/focus groups, which (of course) must be handled delicately and skillfully – but which can also powerfully inform training and communications.

It is certainly challenging to predict the future and determine whether the current momentum is sustainable.  But given the depth and breadth of the publicity and #MeToo movement and related issues being raised, we see a clear shift that shows no signs of abating.

Q.  Given the apparent failure of passive and cookie-cutter training programs, what training solutions have you and others in the field found actually achieve buy-in and create meaningful behavioral change?

A.  There are a number of different things companies should be considering:

From a training planning standpoint:

  • Consider your claims history, internal complaint records, climate surveys, questions and concerns raised by employees, and organizational environment industry factors in program development.
  • Ensure that policies, codes of conduct and statement of values are just where you want them, in terms of content, core messaging and design.

From a training content perspective:

  • Focus on encouraging and simplifying internal reporting; in this regard many clients are asking for more extensive skill-building around “Responding to and In-taking Complaints and Concerns” to be added into their programs;
  • Focus on “Gateway Conduct” – such as leaders dressing down subordinates, which many have seen devolving into more egregious behavior, over time;
  • Focus on encouraging and creating a “step-up” culture of bystander intervention. Clients we work with report real value in referring to bystanders in the positive – as in “Accountable Allies” or “First Responders.” They have also found critical value in both championing and equipping bystanders with credible skills and simple scripts. “Accountable Allies” must be trained to:

** Spot colleagues’ discomfort;

** Support colleagues, using a safe, step-up, speak-up model;

** Employ distraction and extraction strategies, as appropriate;

** Know when and how to call in reinforcements.

We have known for some time that this is all about surmounting barriers of unease and reluctance to appropriately, safely and collectively “check” those starting to cross a line of conduct/norms (including peers at the C-Suite level). That is why the simplest, most user-friendly and tailored scripts can prove surprisingly effective, when built into a larger and cohesive culture strategy.

From a training design and delivery methodology standpoint:

  • Deliver training in everyday language that emphasizes real-world skill-building and avoids “legalese;”
  • Utilize organizational policies, corporate value statements, and best practices as core aspects of the messaging;
  • Wherever possible, arrange content around a set of practical thematic core elements. Choose central concepts and mantras so that delivery is not perceived as a litany of do’s and don’ts;
  • Sessions should all be engaging and fully interactive. This feature is essential. While always calibrating for an audience, the rule is: the more true interactivity, the better. (Having said that, individuals should not be singled out and “compelled” to answer questions.) Post-training surveys show that participants learn little from a “talking head” instructor. They learn and buy-in from collaborating and seeing how their colleagues respond to relevant situationals – and by building a consensus.
  • Ensure that best practices answers come from the group.
  • Keep to a minimum the use of PPTs, videos, and other relatively passive tools.
  • Because the credibility and impact of the presenter is critical for effective training, facilitators should be qualified attorney-trainers with practice and business leadership experience, who are also (importantly) entertaining and professional presenters with a recognized facility for high-energy delivery and an ability to draw-out individuals and powerfully connect their answers.

An added forward-looking defense bonus is deploying a course that has been evaluated and cited as a credible “culture changer” by federal agency-designated monitors in consent decrees. (Editor’s Note – SSAW has such programs! SSAW has participated in numerous EEOC and DOJ consent decrees where the long-term impacts of various communication and training strategies targeting harassment were comprehensively – and positively – evaluated.)

Q.  What additional top-down communications solutions are most effective in the current climate?

A.  One common approach is an all-employee memo re-articulating the organization’s commitment to respect – a “dignity-declaration” of sorts.

Beyond that, many forward-thinking organizations are employing a “wrap around” training communication cascade/approach. Like the training program itself, communication cascades should use simple terms, statements and values – the simpler, the more memorable.  Communications should be delivered through as many valuable and resonant mediums as possible – from team meetings, to emails, to postings on portals, to delivery of hard copies – and should be presented in differing and creative ways, whether virtually, visually or verbally.  With some forethought, organizations can calibrate the timing and variety of such communications so they impact without becoming redundant.

Of course, the most effective communication strategy is one where management at every level consistently refers to your harassment prevention and conduct training mantras and take-aways.

If you have questions about training or how to work toward a more respectful culture within your organization, please contact the authors, your Seyfarth attorney or Seyfarth Shaw at Work directly.

By Kyla Miller, Megan P. Toth, and Erin Dougherty Foley

Seyfarth Synopsis: Gone are the days where sexual harassment training will be enough. It’s time to shift the workplace focus from just ticking a box (i.e., training complete) to creating a culture where harassment (or discrimination) of any kind is truly not tolerated.  Promptly and effectively responding to such allegations is one step in the right direction.  This is the second article in a three-part series addressing sexual harassment in the workplace, which looks closely at corporate culture and provides tips on how companies might avoid being the next sexual harassment headline.

#MeToo In the Workplace and How to Address It

It’s been more than 30 years since the Supreme Court ruled that sexual harassment is a form of sex discrimination under Title VII, and it’s been nearly 20 years since it mandated that complaints of sexual harassment (and discrimination) be investigated. Yet, in reality, as made clear in recent media reports, most violations go unreported and uninvestigated. The EEOC estimates that, of the 30,000 harassment complaints they receive each year, only 6% to 13% of individuals who experience harassment actually file a formal complaint with the EEOC.  However, the #MeToo campaign may be on its way to changing that statistic.

One key to preventing #MeToo in the workplace is fostering a corporate culture that not only says behavior matters, but also shows behavior matters.  But how do employers both walk the walk and talk the talk?  The following are some helpful tips:

  1. Understand what sexual harassment is … the obvious and the not-so-obvious.

The #MeToo campaign has revealed that the vast majority of people have questions or doubts about whether conduct really is sexual harassment.  Let’s take a little quiz:

Could the following acts be considered sexual harassment? Answer Yes or No.

Requests for sexual favors?

Physical Touching?

Comments relating to a person’s sex generally?

A woman asking out another woman?

A man favoring another man (over a woman)?

A co-worker repeatedly teasing another co-worker about sex?

A client or customer sending gifts to an employee?

Could you definitively answer yes or no to each of these examples?  Or did you need more context?  Your answer should be the latter, because yes, each of those examples could be sexual harassment, but each of them could also NOT be sexual harassment.  It depends on the nature, severity and pervasiveness of the conduct.  Whether or not conduct legally rises to the level of actionable “sexual harassment” cannot be analyzed in a vacuum.

Confused?  Here’s why: The question is (legally) whether the conduct at issue was “severe or pervasive,” such that it affected the terms and conditions of the employee’s workplace, objectively and subjectively.

The point –– Not all physical touching, bawdy conversations or allegations of sexual harassment are legally actionable — even if the person reporting it was offended.  Each inquiry is unique and must be investigated thoroughly to determine if sexual harassment actually occurred and what corrective action, if any, should be taken.

  1. Foster an inclusive culture through training and positive reinforcement by managers.

Companies that continue to tolerate bad behavior are placing themselves at risk.  Even conduct that does not cross the line but is disrespectful or rude takes a toll on employee morale.  Attitudes and culture can change.  Employers can provide training to set behavior expectations, and lead by example to create a culture that does not encourage or tolerate such conduct.  However, training simply to prevent legal liability (i.e., because it is required by law) will fall short.  Companies must work from the top down to incite change, which may include a whole-company approach to create and maintain a culture of tolerance, compliance and respect.  In thinking about how to deploy that type of training, keep in mind that training should be:

  1. Tailored. Mirror training to realistic situations that are specific to your work environment.
  2. Frequent. Once a year or more. Anything less is not enough to highlight it as a high priority.
  3. Interesting. Vary the dynamic, style, form and content each time it is presented. (Keep it fresh!)

To create a systemic culture of inclusion, one place to start is with your Human Resources department.  Your HR department should be diverse and accurately reflect your workforce so that they are able understand and respond to its unique demands.  In addition to HR, the actions and integrity of your corporate leaders are crucial. Your company’s leaders must demonstrate a sense of urgency and commitment to your employees, and particularly to preventing discrimination and harassment. How, you ask? Commit the time and resources towards mindful training and continued support to top-level managers to ensure those who have the power and authority to effect change have the support and resources to do it.  It bears repeating: a culture of tolerance and inclusion starts from the top down.

  1. Allow multiple avenues for reporting harassment.

Most employers have an anti-harassment policy. But simply stating that it is not tolerated is not enough. Make it clear that there are multiple avenues for reporting misconduct. For example, allow employees to notify human resources, contact a higher level executive, or call a third-party hotline.  Giving employees multiple ways of getting the complaints heard further encourages such reporting.

  1. Identify situational risk factors.

Being proactive and identifying risks before they turn into problems (or even worse, lawsuits) is half the battle. One place to start is identifying and addressing circumstances, unique to your company, that may increase the risk for sexual harassment claims. For example, the following situations may increase the risk of sexual harassment claims:

  • Workforces with significant cultural and language differences in the workplace;
  • Workforces with significant age or gender imbalances;
  • Workplaces that value customer satisfaction over employee well-being;
  • Isolated workspaces;
  • Workplace cultures that tolerate or encourage alcohol consumption.
  1. Understand the corporate role.

Even in the wake of heightened media on this issue, protecting your workforce and the company is not impossible.  Employers’ legal responsibilities are to: (1) take reasonable efforts to prevent sexual harassment and (2) to promptly and effectively investigate, respond to, and address complaints. By doing both of these things, employers lessen their chances of being found liable for their employees’ behavior in the wake of a lawsuit.

As recent headlines suggest, “good enough” is “not enough.”  Doing just the bare minimum will not suffice. Strive to do more. Over-train. Over-inform. Over-discuss. If employers can accomplish this, they are on the right path to preventing #MeToo in the workplace.

Next up – We will present insights from Seyfarth Shaw at Work’s Managing Director to share his insights from the front lines and provide his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.

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.