Tips for Addressing and Investigating Sexual Harassment Allegations in the Workplace in Light of the #MeToo Movement

Q.  There is a lot of conversation in the national media about the #MeToo movement. How do I ensure that my employees are treating each other properly?

A.  In October of 2017, the two-word hashtag,“#MeToo,” created a social media movement amongst women and men who have experienced sexual harassment. The hashtag was an attempt to educate society about the prevalence of sexual harassment. As a result of the movement, men and women all over the world have been reporting inappropriate behavior in the workplace.  Thus, employers need to be ready for the impact of the MeToo movement and make sure that they have the appropriate policies and procedures in place to effectively address harassment complaints.

    • Be Proactive. Employers have a duty to implement sound, reasonable employment practices aimed at prohibiting and remedying workplace harassment, such as implementing and enforcing anti-harassment policies and procedures, providing sexual harassment training programs, and creating effective reporting mechanisms. Employers should make sure that their anti-harassment policies are legally compliant and their trainings are up-to-date.
    • Take Every Complaint Seriously. Employers are legally required to investigate employee complaints regarding harassment, discrimination, and retaliation. It is important for employers to adequately address every complaint it receives, and recognize that sexual harassment encompasses a variety of behaviors. Sexual harassment appears in many forms, including but not limited to distributing or displaying inappropriate materials, sexual jokes and innuendos, sexual contact and assault, unwelcome sexual propositions, distributing or displaying inappropriate emails, leering and staring, obscene gestures, unwelcome touching or groping, forwarding inappropriate text messages and emails, and making suggestive comments.
    • Begin The Investigation Promptly. It is important to investigate allegations of harassment thoroughly, impartially and quickly. Delaying an investigation makes it more difficult to collect evidence and can signal to employees that their complaints are not being taken seriously.
    • Create An Investigation Plan. Before beginning any investigation, it is helpful to generate an investigation plan. The plan should clearly define the purpose and the scope of the investigation by identifying: the individual(s) and the issue(s) that are being investigated, who will be interviewed, and what evidence needs to be collected. Investigation plans must, however, be flexible, and allow the investigator the ability to adjust the plan in light of information received and “follow the evidence where it leads.”
    • Keep the Investigation Confidential. Employers should ensure that the contents of the investigation are kept as confidential as possible. The employer cannot promise complete confidentiality because the investigator must be free to question appropriate witnesses about the events so that they can obtain a complete picture of the incident.   But information about the investigation should only be shared with individuals who have a need to know.  Failure to treat a complaint with the appropriate level of confidentiality could result in employees being hesitant to report their issues and concerns in the future.
    • Maintain Adequate Documentation. Employers should document the investigative process in case it ever has to defend its investigation during litigation or an EEOC or state agency investigation. Employers should document when the initial complaint was received, when the investigation began, the evidence collected, individuals interviewed, and the resolution. When taking notes, it is important that they are taken contemporaneously, and identify the author of the notes and the date they were taken. In addition, employers should keep in mind that these notes may become evidence in a litigation, and therefore stick to the facts and avoid using labels or drawing legal conclusions in written memoranda.
    • Maintain Objectivity. Investigators must conduct an unbiased investigation. It is recommended that, when feasible, workplace investigations include a two-person investigation team. In some instances it may be necessary to hire independent investigators.  If an employer chooses to utilize internal investigators (HR professionals, general counsel, etc.) it is important to make sure the investigators have the proper training.   Consider whether the company can (and should) keep documents created during the investigation privileged from disclosure.
    • Take Appropriate Remedial Measures. Remedial measures can be implemented before, during, or after the investigation. Depending on the nature of the complaint, it may be necessary to separate the complainant and the accused while the investigation occurs, or place the accused on leave. If the investigator concludes that unlawful conduct, or even inappropriate conduct that may not rise to the level of actionable harassment, has occurred, the employer must take reasonable action. The action the employer takes must be directed to stopping the conduct and any ongoing harm that is occurring due to the conduct. Effective remedial measures may take many forms. When the employee who committed the conduct continues with the employer, there should generally include an acknowledgement of the prohibition against harassment and additional training.
    • Proactively Avoid Retaliation. Claims of retaliation are very common among employees who raise complaints about sexual or other forms of harassment. Employers must make clear to all involved in the complaint, investigation and remedial measure processes that retaliation will not be tolerated. Any remedial measures taken by the employer should include a clear message that retaliation against the complaining party or others involved in the investigation is prohibited, and provide the individual with a mechanism for informing the employer if he or she believes he or she is being retaliated against for making a complaint and/or participating in the process.
    • Be Consistent. Employers must ensure that all complaints are investigated in accordance with their policies and procedures. It is also important that similar conduct receives a similar level of discipline.

Incorporating the following tips into your workplace investigations will help employers identify and eliminate unlawful harassment and avoid the incalculable harm done to the workplace when harassment occurs and is not remedied. These actions will also reduce a company’s liability risk from harassment and discrimination claims. If, as an employer, you feel that sexual harassment is an issue in your workplace, you may want to hire outside counsel to conduct a full investigation and make recommendations.

Renee Manson

 

LinkedIn Activity May Violate Non-Solicitation Agreements

Q: A former employee has invited some of her former co-workers and clients to connect on LinkedIn. Is this a violation of her non-solicitation agreement with our company?

A: It depends. In general, a generic invitation to connect will not be viewed as a violation of a non-solicitation agreement.  However, if an invitation is accompanied by a personalized message or other targeted communication, it likely will be viewed as a violation.

In recent years, non-solicitation allegations have increasingly centered around the use of social media, and most prominently, LinkedIn. Employees argue that LinkedIn invitations are simply a way to keep in touch and maintain their professional networks.  In contrast, employers argue that LinkedIn invitations are an easy way for employees to solicit former colleagues and clients under the guise of connecting on a social network.  After the connection is made, the former colleague or client can see job postings and other information about the employee’s new place of work.  Employers contend that this is no different than an employee calling a former colleague and soliciting them to apply for a position, or calling a former client to solicit business.

In Bankers Life and Casualty Company v. American Senior Benefits, a recent case before the Appellate Court of Illinois, the court sided with the employee.  There, the employer alleged that a former employee’s invitations to three former colleagues to connect on LinkedIn violated his non-solicitation agreement.  The employer argued that, after connecting, the employees could view their colleague’s  profile, which had job listings at his new employer.  The court disagreed, holding that there was no violation of the non-solicitation agreement because the invitations to connect were generic and contained no discussion of either employer.  Additionally, the former employee did not suggest that his former coworkers view job postings at his new job or leave their employment with the company.  The court noted that if the employees accepted the connection, their next steps, which may have included viewing job postings on the new employer’s website page, were not actions for which the former employee could be held responsible.

By contrast, in Mobile Mini, Incorporated v. Citi-Cargo, a Minnesota District Court case, after resigning from her position as a regional sales representative for Mobile Mini, a former employee updated her LinkedIn profile to reflect her new position with a competitor, and posted an update describing her new employer’s business and inviting people to call her for a quote.  The court granted a preliminary injunction, holding that the employee’s postings were not, as the employee claimed, mere status updates announcing the employee’s new position and contact information, but rather were “blatant sales pitches” that were meant to “entice members of [the employee]’s network to call her for the purpose of making sales in her new position at Citi-Cargo.”  The court noted that, had the posts simply announced the employee’s new position and contact information, it was unlikely there would have been a breach.

As the cases above demonstrate, employers who want to enforce their former employees’ non-solicitation agreements should be on the lookout for employee social media activity that amounts to a sales pitch or enticement. However, a former employee who simply announces her new position and provides contact information likely will not be considered to have breached the agreement.

Pepper lawyers have seen a significant increase in both threatened and filed lawsuits relating to non-compete and non-solicitation agreements in the past year. Many of these agreements have imprecise language, which results in confusion on the part of the employee, former employer and new employer as to what kind of action constitutes solicitation, and often leads to disputes about the scope and enforceability of the provisions.  It is essential for employers to ensure they have clearly drafted non-solicitation and non-competition agreements so it can easily be determined whether a particular action violates the agreement.

Jessica X.Y. Rothenberg

 

Termination for Social Media Activity May Result in Unemployment Compensation Benefits

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.

In a recent Pennsylvania Commonwealth Court decision, Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, the Court affirmed a benefits award to a former human resources executive who was terminated for sending what the employer deemed to be a racially-charged tweet about the 2016 presidential election. Until her termination, Kathleen Jungclaus had served as the vice president of human resources of a retirement care community for nearly 20 years. Ms. Jungclaus was terminated when she posted a tweet to her personal Twitter account in July 2016 that stated “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!” Per the employer, “AA” referred to African Americans and Ms. Jungclaus’s tweet was an admission to singling out black staff members and asking them about their political preferences.

Ms. Jungclaus’s employer maintained a social media policy that stated it was the employer’s expectation that employees “who identify themselves with” the employer on social media promote and protect the reputation, dignity, respect, and confidentiality of the employer’s residents, clients and employees. Because of the racially-charged nature of the Tweet (and its presumed reference to African American employees), the employer argued that Ms. Jungclaus’s termination for violating the company’s social media policy constituted willful misconduct.

For Pennsylvania Unemployment Compensation Law purposes, “willful misconduct” is defined as “(1) wanton and willful disregard of an employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer’s interests or the employee’s duties and obligations.” When an employer seeks to deny a former employee unemployment compensation benefits based on a rule or policy violation, the employer must prove (a) the existence of the rule; (b) the reasonableness of the rule; and (c) the employee’s violation of the rule.

Applying these standards, the Commonwealth Court determined that there was sufficient evidence to support a finding that Ms. Jungclaus did not violate the social media policy because she did not explicitly “identify” herself as an employee of Waverly Heights—even though a Google search of Ms. Jungclaus’s name would reveal that she worked there. Furthermore, the Court concluded there was no evidence of “wanton and willful disregard of an employer’s interests” because there was no actual evidence that Ms. Jungclaus polled African-American employees about their political preferences.  The Court found that mere discussions of current affairs did not rise to the level of willful misconduct.

Importantly, the Court reviewed only whether Ms. Jungclaus was entitled to unemployment compensation benefits. The Court was not asked to consider whether the termination itself was unlawful.

The Obama-era National Labor Relations Board (“NLRB”) frequently concluded that overly broad social media policies could have a chilling effect on unionized and non-unionized employee rights to engage in concerted activities under the National Labor Relations Act (“NLRA”).  As we mentioned in a post earlier this year, the U.S. Court of Appeals for the Second Circuit ruled that an employee’s social media post cursing at a supervisor and his family, made during a union election, was protected activity under the NLRA, and the employee could not be terminated for it. It remains to be seen how the Trump NLRB will interpret and enforce social media policies.

The primary lesson for employers? Unless an employer can affirmatively establish that a terminated employee engaged in willful misconduct or is ineligible for benefits due to other disqualifying reasons, then the terminated employee likely will be entitled to unemployment compensation benefits. Further, when making an employment decision based on an employee’s social media post, tread carefully. At least for unemployment purposes, it is likely that state labor departments and the courts will not find such comments to rise to the level of willful misconduct. Additionally, depending on the content and context of the post, the NLRB may find the post to be a lawful concerted activity protected by the NLRA.

Lee E. Tankle

Employees’ Right to Representation During Employer Interviews

Q.  I am the HR Manager for a non-union workplace and we are investigating an issue involving employee misconduct. One of the employees whom I want to interview has requested that a coworker attend the interview as his “representative.” Can we say no?

A.  Yes!

While the NLRB has flip-flopped on this issue several times over the past few decades, the current ruling is that employees in non-union workplaces do not have so-called “Weingarten” rights to representation during company interviews.

The history of whether Weingarten rights to representation cover non-union employees is an interesting example of the effect of the shifting political landscape over time. Back in 1975, the United States Supreme Court held, in the case NLRB v. Weingarten, that an employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by denying a unionized employee’s request to have a union representative present at an investigatory interview which the employee reasonably believed might result in disciplinary action.  Six years later, the NLRB extended Weingarten rights to non-union employees.  However, in a pair of subsequent cases in the mid-1980’s, the NLRB reversed this decision and ruled that Weingarten rights did not extend to non-union employees.

Fast forward to the year 2000 and a new set of competing decisions. In the case, Epilepsy Foundation of Northeast Ohio, the NLRB reversed its prior decision and instead found that non-union employees did indeed have a right to have a co-worker present during an investigatory interview that could lead to discipline.  However, just four years later, in IBM Corp., the NLRB changed direction again, ruling that Weingarten rights did not extend to non-union employees.  In the IBM Corp. opinion, the NLRB noted that an employee’s right to a representative was outweighed by the employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.

Since the IBM Corp. case, the NLRB has rejected subsequent attempts to extend Weingarten rights to non-union workers.  In a NLRB Office of the General Counsel Advice Memorandum,  dated December 1, 2016 but not released until two months ago, the Office of the General Counsel urged Region 6 to use a pair of cases against General Electric Company to press the Board to extend Weingarten rights to unrepresented employees.  However, both cases were withdrawn.  Given the change in the make-up of the Board under the Trump Administration, it is unlikely that the Board will take up this issue anytime soon.

So, for the time being at least, employers of non-union workers can continue to conduct investigatory interviews without permitting employee representation. On the other hand, Weingarten rights of unionized workers remain intact.

— Tracey E. Diamond

 

AN EMPLOYER’S DUTY TO ACCOMMODATE NOT SO-COMMON RELIGIOUS PRACTICES

Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.

Recently, the United States District Court for Western District of Pennsylvania, as well as the Court of Appeals for the Fourth Circuit, have addressed accommodating the religious practice known as the “mark of the devil” or the “mark of the beast.” In both instances, the Courts held that the employee’s allegations were sufficient to establish a sincerely- held belief in the religious practice.

In Kaite v. Altoona Student Transp., Inc., the employee worked as a school bus driver and refused to have fingerprints taken because she believed that fingerprinting was the “mark of the devil” and if she submitted to it she would not get into heaven.  The employee asked for an accommodation in the form of a different type of background check that did not include fingerprinting.  The employer refused and terminated the employee’s employment for failing to comply with the State’s background check law.

The United States District Court for the Western District of Pennsylvania rejected the employer’s attempt to dismiss the case, holding that, at least at the motion to dismiss stage, the employee had sufficiently alleged a prima facie case of religious discrimination.

To establish a prima face case, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  Once the employee establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”  Here, the employee stated that (i) she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” and would prevent her from going to heaven; (ii) this belief conflicted with her job requirement that she undergo a background check; (iii) the employer was aware of her sincerely-held religious belief; and (iv) the employee subsequently was terminated for failing to comply with the fingerprinting requirement. This was enough to overcome a motion to dismiss.

Similarly, in EEOC v. Consol Energy, Inc., the employer implemented a biometric hand-scanner system for the purpose of requiring employees to check in and out of work.  The employee refused to use the a scanner because of his religious belief that the use of the scanner was the “mark of the beast.”  The employer refused to accommodate the employee’s religious belief, although the employer accommodated others who could not use the hand scanner for non-religious purposes.  The EEOC brought suit on the employee’s behalf, which went to trial.  The jury returned a verdict for the employee totaling $586,860.00 ($150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits).  The Fourth Circuit Court of Appeals affirmed the District Court’s ruling denying the employer’s motion for a new trial and motion for judgment.

Both of the cases illustrate an employer’s need to be tolerant in accommodating all religious practices, not only those that are considered more mainstream. Employers should remember that demonstrating a sincerely-held belief is typically a “low bar,” and most employees likely will be able to establish this element of their claim.

Moreover, these cases serve as a reminder that, when making determinations regarding accommodating religious practices, the company should:

  • Review whether it has made exceptions for non-religious reasons; and
  • Consider the actual hardship to the employer in accommodating the employee’s request.

Kali T. Wellington-James