Legal Ramblings

Addressing Employee Harassment: An Essential Guide for Employers

Often making headlines, employee harassment remains a significant issue in the current social climate. Employers bear an undeniable responsibility to prevent and address harassment claims within their organizations.

This duty extends to all forms of harassment, encompassing sexual harassment as well as harassment based on race, nationality, age, disability, and other legally protected statuses[^1^].

However, this obligation also presents an opportunity to facilitate open discourse about harassment and draw clear lines for acceptable workplace behavior. This article serves as a comprehensive guide on recognizing and investigating employee harassment claims.

The Obligation to Investigate

Upon receiving a harassment complaint, an employer must undertake an investigation. This duty arises regardless of the complaint’s formality, whether submitted via an established grievance procedure or an informal communication[^2^]. Two landmark Supreme Court decisions underscored employers’ duty to investigate harassment complaints: Burlington Industries. Inc. v. Ellerth[^3^] and Faragher v. City of Boca Raton[^4^].

In Ellerth, the court noted that employers could be negligent regarding harassment if they “knew or should have known” about the conduct and did nothing to stop it[^5^]. Faragher further emphasized that employers can reduce their liability for actionable harassment by promptly investigating and remedying the situation[^6^].

The Consequences of Negligence

Should an employer fail to perform their due diligence in investigating a harassment claim, they risk losing their chance to invoke these affirmative defenses. A reluctancy or delay in investigating could be perceived as the employer’s failure to “exercise reasonable care to prevent and correct [harassment] promptly”. Moreover, an employer known for its reluctance to investigate may struggle to demonstrate that the complainant unreasonably failed to avail themselves of any preventative or corrective opportunities provided by the employer[^7^].

Implementing a Robust Complaint Procedure

Every workplace should have a written internal complaint procedure, such as a harassment policy. This policy should encourage victims to report harassment, ensuring that all formal complaints are thoroughly investigated. Additionally, even informal reports or indications of inappropriate conduct should be investigated, regardless of whether the term “harassment” is explicitly used[^8^].

There are situations where an employer is obligated to investigate harassment cases, even if the alleged victim doesn’t request or consent to the investigation. In such cases, the employer should continue to monitor the situation by checking with the victim to determine whether the harassment has ceased or if any further action is required[^9^].

Timeliness of Investigation

Investigations must commence and conclude promptly. Any delay in initiating an investigation could be interpreted as the employer’s indifference to fostering a hostile work environment. Further, as time passes, evidence may disappear and memories may fade[^10^]. Prompt action also significantly increases the chances of satisfying the complainant with the employer’s response to their complaint[^11^].

Conducting an Effective Investigation

The key objective of any investigation is to establish the basic facts of the case. This includes identifying the alleged harasser(s), the location and timing of the incident, the impact on the complainant’s work, any potential witnesses, and whether the incident was part of a larger pattern[^12^].

In most cases, harassment policies advise victims to contact a supervisor or a designated official in the Human Resources Department. It’s essential that supervisors and managers report any complaints to the Human Resources Department, allowing for an appropriate investigator to be assigned[^13^].

The investigator should possess a strong understanding of the issues at hand and be willing and able to dedicate the necessary time to the investigation[^14^]. If maintaining objectivity might be challenging for internal personnel, it may be beneficial to hire an external investigator to guarantee a fair and impartial investigation[^15^].

Interview Process

During the initial interview with the complainant, the interviewer should prepare a list of open-ended questions to gather as much information as possible about each alleged harassment incident[^16^].

The alleged harasser should be informed about the purpose of the investigation and assured that no conclusions have been made yet[^17^]. The alleged harasser should also be warned against any potential retaliation against the complainant[^18^].

Gathering Additional Evidence

Beyond interviews, it’s crucial to collect any additional evidence that could corroborate or refute the complaint. This could include emails, text messages, social media posts, and even data from key card access or security camera systems[^19^].

Concluding the Investigation

Upon the conclusion of the investigation, the investigator should evaluate the available facts and the motivations of the parties involved. It may be beneficial to draft a written report documenting the investigation and its conclusions[^20^].

Taking Prompt Remedial Action

Once the investigation concludes, the employer should communicate the results promptly to both the complainant and the alleged harasser[^21^]. If the investigation determines that harassment has indeed occurred, the employer must take “prompt remedial action”[^22^]. This action could range from issuing a warning to terminating the employee[^23^].

Employers must respond to any repeated misconduct. If the same or similar incidents occur, the effectiveness of the employer’s previous responses may be questioned[^24^].

Protecting Confidentiality

An internal investigation should protect the reputations of both the complainant and the alleged harasser. The allegations and information obtained should only be discussed with the involved parties[^25^]. Emphasizing the need for confidentiality shouldn’t result in intimidating the complainant or the supporting witnesses[^26^].

The Bottom Line

In light of the ongoing attention on employee harassment, employers must be proactive in addressing harassment complaints. Striving to ensure that employees understand the company’s policies and procedures is crucial for preventing and correcting inappropriate conduct in the workplace[^27^].

Note: This guide is intended for informational purposes only and does not substitute for legal advice from a licensed professional attorney. For further reading, visit SHRM’s guide on conducting an investigation.

[^1^]: Title VII of the Civil Rights Act of 1964, as amended (race, color, religion, sex, and national origin discrimination); (2) the Americans with Disabilities Act, as amended (disability discrimination); (4) the Age Discrimination in Employment Act (age discrimination). [^2^]: Burlington Industries. Inc. v. Ellerth, 118 S.Ct. 2257, 2267 (1998). [^3^]: 118 S.Ct. 2257, 2267. [^4^]: 118 S.Ct. 2275. [^5^]: Ellerth, 118 S.Ct. at 2267. [^6^]: Faragher, 118 S.Ct. at 2275. [^7^]: Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000). [^8^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009). [^9^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^10^]: Ogden v. Wax Works, Inc., 214 F.3d 999, 1010. [^11^]: Ogden v. Wax Works, Inc., 214 F.3d 999, 1010. [^12^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^13^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^14^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^15^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^16^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^17^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^18^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^19^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^20^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^21^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^22^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^23^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^24^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^25^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^26^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802. [^27^]: Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802.

Legal Ramblings

How To Implement Diversity Training In A Small or Mid-Sized Business

As my law career has progressed over the years several of my clients have asked me to implement programs for them. Over the last several years, and most importantly in 2020 to the present, diversity training has been a hot topic.  Helping clients implement a program has been a constant request.

Establishing a diversity and inclusion (D&I) culture in the workplace has become a crucial strategy for achieving success in modern organizations. Unfortunately, however, an L&D report by reveals that a shocking 48% of employees never receive any diversity training at work. This statistic may shed light on the difficulties some HR managers face when recruiting global talent.

There are often numerous hurdles to jump when recruiting global talent, e.g., international timelines and communication, complicated visa requirements and scouting the talent in the first place. Nevertheless, with the assistance of well-designed diversity training programs, implementing a D&I culture is achievable, not to mention its potential benefits for talent acquisition.

Implementing workplace diversity training is also a crucial step in mitigating workplace harassment and discrimination claims. As an attorney, I can attest that when settling discrimination claims, the Equal Employment Opportunity Commission (EEOC) usually recommends organizations to educate their employees on the necessity for diversity and inclusion and cultural competence.

What Is Workplace Diversity Training?
Workplace diversity training addresses unique employee attributes – gender, ethnicity, sexual orientation, color, religion, race, age and socio-economic status – and how to work together regardless of these attributes. This exceeds political correctness and instead focuses on embracing any employee differences and the valuable perspectives they bring to the organization.

This form of training is considered functional when it:

  • Promotes an inclusive company culture
  • Establishes true understanding instead of a simple list of dos and don’ts
  • Seeks out, embraces and respects different approaches resulting from a diverse workforce rather than merely tolerating them

Essentially, this form of training encourages organizations to go beyond tolerating differences that are deemed not worthy enough. Through effective diversity training, modern organizations can outface the #MeToo movements.

The Importance of Diversity In the Workplace
When implemented correctly, a culture of diversity and inclusion creates a feeling of inclusion among employees. Ultimately, this makes employees happier, reduces turnover rates, reduces hiring costs and improves the organization’s overall expertise.

Statistics suggest that happier employees are at least 37% more productive. Also, racially and ethnically diverse organizations have a 35% higher chance of exceeding the median national financial returns in their respective industries. For your company, the issue of diversity could all boil down to whether you desire a healthier bottom line. Either way, the benefits of diversity are clear at both the organizational and individual levels.

How to Implement D&I Training
Nowadays, laying out many restrictive rules, and expecting employees to follow them is not enough. If anything, this could achieve the opposite of a successful D&I culture. Implementing a training program that portrays diversity acceptance as a solution that benefits all employees is the way to go if you are to achieve any long-term positive results.

The important thing to remember here is that it doesn’t matter if you use a specialty in person diversity trainer, a video on diversity training, or just have an existing manager perform the training….the key is that you actually DO the training in one form or another.

As a practicing attorney, I have identified the following vital D&I training strategies that have helped nurture diverse and inclusive cultures in several organizations.

1. Implementing A Top-Down Approach
Recognizing the need for diversity in your organization is one thing, determining where to begin is another. Regardless of the size of your company, you have to realize the falsity of the claim that changing workplace culture is impossible. It is very easy for employees to backslide to their old practices and beliefs without realizing the constant changes happening in their respective industries.

Talent acquisition teams and recruiters are no exception to this phenomenon. By failing to address the realities of diversity in your organization, everyone can forget the importance of fresh and diverse perspectives. This could gradually make your business fall behind amidst a rapidly evolving business environment, especially if other organizations quickly respond to such changes.

D&I training programs help provide real solutions since they enable employees in all organizational hierarchies to appreciate the necessity for diversity and remain conscious of diversity as a factor in recruitment. However, successful implementation of any D&I training strategies requires the significant engagement of the organization’s top leadership at every stage of the process.

Research suggests that companies with leaders engaged in Learning and Development (L&D) are three times more likely to have an organizational culture of innovation. Each organization is unique, and strategies that work for other organizations may not necessarily work for yours. Organizational nuances, therefore, call for D&I training initiatives that begin from the top levels of leadership in the organization. This strategy makes it possible to align training strategies to overall organizational goals while avoiding the pitfall of implementing “copy-and-paste” training strategies that often end up unsuccessful.

2. Promoting Diversity in Talent Scouting and Recruitment Practices
From my experience working with several companies to enhance their D&I culture, I have learned that no resource or training is capable of solving prejudice single-handedly. When addressing diversity issues, it is best to take an organizational approach instead of an individual one. This implies that all the training and resources involved should help all leaders across the organizational hierarchy take systematic steps in making diversity and inclusion take center stage in their respective levels.

Whenever leadership is engaged in developing and implementing a D&I training program, employees naturally approach the training with a deeper understanding of the importance of diversity in achieving organizational goals. Employees will also have greater motivation to implement what they learn in training into practice.

Training that comes from the top to resolve diversity and hiring biases will make recruiters more aware of their own unconscious biases. Such awareness is crucial for improving cultural competence and inspiring positive change via recruitment from the bottom up.

Following a successful change in culture, developing and implementing more inclusive talent acquisition and recruitment strategies will inevitably position the organization to move in the right direction.

It is thought that roughly 65% of companies have official programs for recruiting diverse and inclusive employees. However, results suggest otherwise. For instance, approximately 71% of female Millennials feel there is an inequality of opportunities despite talks of diversity by organizations. Such statistics suggest that there is plenty of room for improvement in terms of diverse workplace culture and inclusive recruitment practices.

3. Raising Awareness
Among the goals of D&I training initiatives is raising awareness of the benefits of working together with people regardless of their different genders, ages, races, ethnicities, beliefs and cultures. Through relevant and engaging elements such as interactive training videos, diversity training helps employees comprehend how concepts such as civility, workplace sensitivity, unconscious bias and cultural competency play out in real-life situations.

While such concepts are not groundbreaking, the contexts and ways in which they are applied keeps on changing. For instance, cultural competency – the ability to effectively communicate and interact with people across different cultures and backgrounds – is now a part of recruitment training in several police departments, e.g., The Tulsa Police Department.

Through cultural competency programs, which often cover implicit bias training, police officers can learn how to better communicate and interact with people of different cultures. Even though there is still plenty of ground to cover, this is a step in the right direction, especially in terms of biases and conflict resolution.

Another concept that has gained popularity this year is unconscious bias or implicit social cognition – hidden attitudes that affect decisions, actions and understanding based on social stereotypes – following incidents such as the BLM protests. At an organizational level, research reveals an overwhelming preference for white individuals and males during hiring and promotion. Moreover, most mothers risk penalization for forgoing opportunities that could distance them from their children.

Including implicit bias training in D&I initiatives is necessary to reduce stigma and enable participants to contemplate the harmless nature of their unconscious thinking and the potentially harmful consequences. Remember, while implicit biases are often synonymous with negative consequences, they are very malleable. This malleability makes implicit bias training worth trying.

4. Introducing Inclusion Initiatives
Do not be afraid of taking radical approaches to shift your company’s workplace culture to normalize inclusion. Contrary to popular opinion, propagating the notion of including everyone and eliminating any feelings of segregation is relatively easy to achieve. While unconscious bias training is important for all employees, recognizing that D&I training sessions are one piece of a bigger puzzle is even more important.

While I cannot downplay the importance of formal D&I training, I am conscious that D&I training should exceed formal training sessions to have any meaningful effect on workplace culture. Some inclusion initiatives I have found effective in most companies I have worked with include:

  • Mentorship programs
  • Lunch-time learning
  • Employee resource groups

These initiatives help bring together employees with shared identities to discuss matters that come up during work and life in general. Any modern organization that seeks to outperform its competitors should be willing to invest in the training, learning and development needs of its employees. The potential returns are very promising since it could enhance organizational innovation, customer service and employee retention.

5. Actualizing the Knowledge from Training
It is quite unfortunate that many companies ignore issues of diversity and inclusion until they become bigger. At this point, addressing issues of diversity and inclusion becomes a challenge due to the already established culture from its exponential years.

Learning and development are major drivers of organizational culture; therefore, they deserve integration into all organizational levels. Sadly, this is not the case with many small and mid-sized organizations. For instance, a meager 30% of employers across all industries agree that their companies’ strategies for recruitment and diversity align with their needs.

That said, until D&I training programs and initiatives become organizational endeavors, talent acquisition specialists and talent managers will not have a chance of directly impacting the actualization of what is acquired through training. Making these initiatives organizational endeavors will enhance the engagement of talent managers with diverse talent pools, thus contributing to making their organizations more diverse and inclusive.

An organizational culture that is inclusive and supportive also improves the ability of employees to respond to client needs. While D&I programs have an essential role in educating employees, inclusion should be intertwined with all company aspects for it to thrive.

The Bottom Line
Promoting diversity, regardless of the size of an organization, is a basic requirement in the contemporary workforce. Generation Z, arguably America’s most diverse generation, are just beginning their careers. In as little as five years, Millennials are expected to make up at least 75% of the American workforce by 2025. Judging by your company’s training and recruitment strategies, do you feel ready to facilitate the diversity that this workforce has to offer?

Using D&I training programs to develop a workplace culture that fosters diversity and inclusion is a direct approach to increasing diverse recruitment and making the talent acquisition team aware of their unconscious biases during hiring. Having a talent acquisition team educated on diversity and inclusion, and a culturally competent workplace culture will make the dream of a highly diverse workplace a lot easier to achieve.

Legal Ramblings

How To Handle Employee Bullying Issues

When you are an attorney you deal with a lot of interesting issues. One that isn’t so interesting is the issue of bullies in the workplace. Bullying goes beyond little kids on the playground and teens in high school. Adults can experience bullying in the workplace, too. Is bullying occurring in your workplace? Here’s what you need to know.

The Legal Aspect of Workplace Bullying
As of 2020, there are no federal laws or state laws that prohibit workplace bullying. Bullying in the workplace is illegal only if it violates federal or state harassment and discrimination laws.  Here are some examples of laws that deal with bullying in the workplace.

Harassment and discrimination laws protect employees based on specific characteristics. Legally protected characteristics include: race, color, disability, gender, sex, age, religion, and country of origin.

If a workplace bully taunts a co-worker based on a protected characteristic, then it’s considered illegal harassment. The bullied co-worker can claim the workplace is hostile if the bullying is severe, pervasive, and abusive.

For example, say that a manager constantly taunts a co-worker. In this example, the co-worker is a man. The manager calls the co-worker lazy, stupid, and dumb on a daily basis. It these taunts are based on sex or gender, then they are considered harassment.

For example, the manager says things to the co-worker like, “I thought men were smart, but you proved me wrong.” That statement is possibly illegal because it’s gender-based harassment. This same rule applies if the manager bullies all the men in the office, but never any of the women.

However, if the manager’s comments aren’t linked to gender or any protected characteristic, then it’s not illegal. Even if the manager bullies everyone in the office, the actions are not illegal unless they’re based on a protected characteristic. Workplace bullying can violate other laws, however.

If a workplace bully threatens physical abuse against a co-worker, then that’s potentially a case for assault. And a workplace bully who taunts a co-worker both on and off the job is possibly guilty of stalking.

Dealing with Workplace Bullying
Some states are taking action to prevent workplace bullying. For example, California requires companies with at least 50 employees to train managers on how to identify and prevent abusive workplace behavior.

Abusive behavior in the workplace is any conduct that the average person would think is offensive or hostile. The conduct is also unrelated to legitimate business matters. Offensive or hostile actions in the workplace can include threats of physical abuse, verbal abuse, and sabotaging a person’s work.

The best way to discourage workplace bullying is to stop it before it starts. Encourage respect, kindness, and communication between co-workers. And when bad behavior does occur, take immediate action to deal with the situation.

Create an Anti-Bullying Workplace Policy
Bullying in the workplace isn’t illegal. But you can create an anti-bullying workplace policy for your employees. This policy is a preventive measure that will give you support should bullying occur.

Include the following in your workplace policy:
1. An in-depth definition of bullying that includes several examples.
2. Instructions on how to confidentially report workplace bullying without concerns about retaliation.
3. A clear explanation of what happens after a complaint is received and how the investigation process works.
4. An in-depth and clear explanation of the consequences of violating the policy.

Every employee should receive a copy of the anti-bullying policy. After sharing the policy, have every employee read and sign a code of conduct stating they’ve read, agree to, and understand the policy. A code of conduct is a legally binding document that outlines acceptable and unacceptable behavior in the workplace.

When Policy Violations Occur
Take action immediately when workplace bullying is reported. Immediate action prevents the situation from becoming worse. However, thoroughly investigate the situation before taking disciplinary action.

Suggestions for handling the situation include:
1. Facilitate a meeting between the workplace bully and the victim. Discuss the situation. The bully and the victim can possibly solve the problem between themselves. However, this is only suggested if there is no threat of physical danger. Make sure you’re also present at the meeting.

2. Meet privately with the workplace bully. Explain the reason for the meeting, and discuss possible solutions. You don’t have to provide details about who reported the bully.

3. Provide details on the consequences should the behavior continue. A verbal warning is sometimes enough to stop the bullying behavior. But if the abusive behavior continues, counseling, a written warning, a demotion, or termination may result.

4. Document details of the reported incident, and any meetings between yourself, and the bully and/or victim. This is a legal measure to protect you and the business.

5. Support the victim. Bullying often causes emotional distress. Offer support to the bullied employee. You may want to suggest they join a support group or see a doctor.

Seek Legal Support
If you’re unsure about how to handle workplace bullying, you can seek legal counsel. Technically, workplace bullying isn’t illegal unless it’s based on a legally protected characteristic. And you might need guidance on knowing when bullying is illegal and when it isn’t.

Legal Ramblings

How to Create a Fair and Just Personal Leave Policy

Creating a personal leave policy for your small business is a tricky situation. You have to walk a fine line between what’s best for the business, what’s best for your employees, and what’s legal.

Do you want to create a policy that’s so great, it attracts the best employees? Or do you want a policy that only offers what’s required by law? These are things to consider when creating your personal leave policy. You also have to learn which labor laws apply to your business.

Understanding Your Obligations as a Small Business Owner

It’s important to understand your options as a small business owner. You’re not necessarily required to follow the same labor laws as other small businesses. It all depends on how many employees you have. Take the Family Medical Leave Act (FMLA) for example.

FMLA is a labor law that requires employers to provide employees with unpaid leave for family matters and qualified medical reasons.

Private employers with 50 or more employees must comply with the FMLA. Failure to comply can result in stiff penalties and other punishment. But private employers with less than 50 employees aren’t bound by the FMLA.

When creating your personal leave policy, it’s important to understand what you’re legally required to offer.

Consider seeking legal advice before creating any policy that affects your business. There are Federal laws, state laws, and even local labor laws that you might not know about. Search online for leave laws by municipality and state to learn more about labor laws in your area.

Taking a Modern Approach to Personal Leave

Staying in compliance with labor laws is extremely important for any business – small or large. But as a small business owner, you actually have a lot of freedom when it comes to creating a personal leave policy.

Leave benefits are often simply an agreement between an employee and an employer. And you can decide to offer whatever you want – as long as it’s fair and reasonable.

Some companies have started offering Paid Time Off (PTO). It’s a more flexible way to make sure employees get the time off that they need when they need it.

Bundled PTO means that vacation time, sick time, and time for personal days are all pooled together. The employee decides how to use the time – be it because they’re sick, need a vacation, or just want to take a break.

The employee doesn’t need to explain that they’re sick. They don’t have to tell you if they’re taking a vacation. Or they don’t have to let you know they just don’t want to come into the office for the day. The PTO time is there’s to use with no need to explain what it’s for. On the other hand, traditional personal leave allocates a specific number of days a person can use for personal time.

It’s possible your business and your employees will benefit from PTO over traditional methods of leave. For example, PTO often reduces the number of unscheduled absences from work. And it allows the business to attract and retain better workers who are attracted because of the flexible PTO policy.

Employees often prefer PTO because it gives them the freedom to decide how much personal time, sick time, and vacation time they need. The freedom of not having to explain their reasons for needing time off is counted as a benefit as well.

Companies that offer PTO usually continue to offer separate programs for things such a jury duty, bereavement, and holidays.

PTO can also possibly prevent claims of discriminatory personal leave practices, like in the case of a 1999 lawsuit involving a father in Maryland.

The father was awarded $375,000 after he sued his employer. The employer had denied the man’s request for time off to spend with his newborn daughter. Maryland courts ruled in the man’s favor, stating that if a business offers a woman maternity leave, it should also offer men paternity leave.

In the situation above, a PTO policy would’ve avoided the situation. The father would’ve had personal time to use at his discretion.

Several well-known companies have found success by offering PTO. Google, IKEA, General Motors, and Costco all offer PTO – just to name a few.

Writing the Policy

There is no Federal law that requires a business to offer paid or unpaid personal days off. The benefit of having personal days off is solely at the discretion of the company.

However, it’s in your best interest to discuss your personal leave policy with an attorney before making anything official. You can also contact the local Department of Labor with questions about specific employer standards. It’s possible that your state or city has its own laws regarding what you must offer to your employees.

Once you’re clear about your legal obligations, you can finally create a written personal leave policy that you think is fair.

You have to decide who is eligible for personal leave. For example, are part time employees eligible? How soon after hire can an employee take personal time off? And will you offer paid or unpaid time off?

There also should be a process for requesting leave. How far in advance does an employee need to request time off? Does the employee need to complete any special paperwork? All of this should be covered and clearly explained to the employees.

Sharing the Policy with Employees

The final step is to share the policy with your employees. Create an employee handbook or manual that includes details about the policy and its procedures. Providing the information on your business website is helpful as well. And remember, you can always make changes to the policy if the need arises.

Legal Ramblings

How To Properly Implement a Dress Code Policy

Some businesses implement dress codes to ensure employees dress appropriately at work. The intention is to do what’s best for the business, and to create a positive image. But a person’s style of dress is often personal, and influenced by things such as religious and cultural beliefs.

An employer must consider the possible legal ramifications of implementing a workplace dress code. How far can a company go when it comes to telling employees how to dress? Legally, a dress code must not cross over into the realm of harassment or discrimination.

Discussing the dress code with employees beforehand is possibly a wise decision. That give you a chance to get feedback, and makes employees a part of the process. This can help you spot potential legal pitfalls before they become an issue.

To properly implement a dress code, you must make sure the dress code is legal. A dress code should….

1. Avoid Religious Discrimination

It’s common for people to wear certain items based on the rules and customs of their religion. For example, a religion might require followers to wear a head covering in public at all times. Creating a dress code that prohibits wearing a head covering could possibly infringe upon a person’s religious freedom.

Make sure the dress code explains how an employee can request an exemption based on religious grounds. Also, make sure the dress code explains in detail the reason for the prohibition. If there’s a legitimate business reason for prohibiting the garment, then it’s possible to avoid a claim of discrimination.

Legally, it’s in your best interest to carefully review any request for a dress code exemption. Try to reach a compromise if possible.

You’re not legally bound to allow any type of clothing just because it’s considered part of an employee’s religion. This is especially true if the clothing is a safety hazard, and poses a threat to employees. If you want a really good overview from the EEOC on religious dress, here is a good resource.

2. Avoid Discrimination Based on National Origin

An employee can possibly claim national origin discrimination. This claim is a possibility when a dress code prohibits wearing an item of clothing associated with a specific culture. But the same dress code doesn’t prohibit similar types of clothing.

For example, a business dress code might prohibit employees from wearing clothing that exhibits foreign flags. But the dress code allows clothing that exhibits the domestic flag. This can trigger a claim of discrimination based on national origin.

3. Avoid Harassment and Discrimination Based on Sex or Gender

Differences in dress codes for men and women are acceptable within reason. It’s common for men and women to have different dress and grooming practices. But it’s illegal for a dress code to result in a situation that gives one sex an advantage over the other.

Take for example a job that requires a lot of walking and heavy lifting – such as in a warehouse. Requiring women to wear dresses and high heels would put them at a disadvantage against men wearing jeans and flat shoes. The dress code might even discourage women from applying for employment, but men would not be discouraged.

It’s also important to equally enforce the dress code. If women are reprimanded for not following the dress code, men that don’t follow the dress code should be reprimanded as well. Targeting one group over the other can possibly lead to claims of sexual harassment.

4. Avoid Discrimination Based on Disability

Disability-based discrimination is often overlooked when creating dress codes. There are situations in which an employee’s disability prohibits them from complying with a dress code.

Employers should take disabled employees into consideration when creating dress codes. If a disabled employee is unable to comply with the dress code, provide instructions on how they can request an exemption.

It’s best to reach a compromise when possible. The only exception is if a compromise would endanger other employees.

The Possible Legal Pitfalls of a Dress Code

It’s important to carefully review your business dress code before implementation. As you can see, there are several legal pitfalls that can unintentionally result. And with so many potential legal issues, you may wonder if any dress code is legal.

If you have doubts about implementing a dress code, make sure there’s a solid logical reason for every item in the code. That’s the best way to make sure the dress code can withstand legal claims against it. Of course, if you ultimately need to discipline an employee for breaking your dress code there is a proper way to go about that.

Explain the dress code to employees. Make sure they understand the reasoning behind the dress code’s requirements. It’s also wise to stress that employees can request exemptions based on religious beliefs or issues involving disabilities.

As an employer, understand that you must consider all requests for dress code exemptions. Failure to do so could land you in legal hot water. You must also make it clear that you’re willing to compromise, unless compromising creates a dangerous environment.

If you’re unsure about your business dress code, it’s best to seek legal advice. You just might have a dress code policy that crosses over into illegal territory. It’s best to consult an attorney before a problem arises.

Legal Ramblings

The Employers Responsibilities for “Reasonable Accommodation”

Employers have various responsibilities, some imposed by internal work laws and others by Federal and state laws. The American Disabilities Act, commonly known as ADA, is one of the Federal laws that employers have to pay attention to keenly. As an employer, most of your employees are drawn from diverse abilities; therefore, persons with disabilities probably form part of your workforce. Unlike everybody else, persons with disabilities have special needs; therefore, the employer must accord them with reasonable accommodation.  When an employee asks for a “reasonable accommodation” you need to know what to do.

In my line of duty as an attorney, I have had a chance to advise clients on the ADA. The common issues that I have always had to address are:

How to determine whether an employee has an ADA disability
As humans, there are several major life activities that any able person can perform with ease. Some of these major life activities include eating, walking, performing manual tasks, self-care, standing, and major bodily functions, among many others. While such activities are easily doable for someone with no disability, the case is different for those who have a disability. Therefore when determining whether an employee has an ADA disability, an employer has to pay attention to whether even after using mitigating measures, such a person is still substantially limited in the performance of activities like walking, self-care, working etc.

What are mitigating measures?
An amputee might choose to use a prosthetic foot to help them move around. In the same regard, someone with a hearing impairment can use implantable hearing devices to help them hear. These are just some of the things recognized by the ADA as those that can lessen the effects of a disability.

What is a substantial limitation?
Substantial limitation, according to the ADA, is whereby an employee’s ability to perform major life functions is limited, especially when compared with the ability of the general population. Even persons suffering from depression have been classified as those who can qualify as substantially limited hence qualifying for an accommodation under the ADA.

Therefore for an employer to determine whether an employee has an ADA disability, such an employee must still have substantial limits when performing major life activities even after when using mitigating measures. Remember that the ADA does not give a list of those impairments either mental or bodily that qualify as disabilities with substantial limitation. As an employer, you are under an obligation to consider the effects a disability has on an employee. Therefore even mental conditions that inhibit the effort an employee can put into their work can be considered as a disability deserving of accommodation under the ADA.

What is reasonable accommodation according to the ADA?
The ADA has covered various employment practices by considering them as unlawful because they don’t offer reasonable accommodation to people with disabilities. Almost every employment activity is covered under the ADA ranging from recruitment, payment, job assignments etc. It is therefore unlawful under the ADA to discriminate against someone with a disability right from recruitment. Employees have the right to demand their rights under the ADA. As an employer, you are under a duty to undertake various procedures to determine the disability and proceed to accord the employee the requested accommodation or dismiss the request dependent on the finding.

The responsibility to provide reasonable accommodation is only applicable where the employee has the actual disability they claim to suffer from. Employers can ask employees to furnish them with any documentation that shows the existence of the disability. Therefore when an employee alleges that they have a disability, their allegations don’t form an authority but rather a basis for further determination.

Examples of reasonable accommodation
When facing accommodation requests even during the determination of the existence of the disability; the due diligence you can conduct as an employer is to find out whether you have the capability of providing the requested reasonable accommodation. Also, consider the effects that such accommodation will have on your business.

Some of the issues that my clients always battle with are what can be considered as a reasonable accommodation. Here are some of the types of accommodations you can undertake to ensure that you comply with the ADA.

 Allow flexibility
An employee battling PTSD or depression might have difficulty sleeping at night despite using the necessary prescriptions. Such an employee might request for flexible working hours hence not ending up as strenuous on their end. Additionally, it could be fair where possible to let the employee undertake their duties remotely.

 Accord reserved parking
Due to the nature of the disability, the employee might require a special parking spot. An employee who is an amputee, for example, will require some special treatment when it comes to parking space.

 Make the work environment more accessible
Providing reasonable accessibility in the work environment for an employee on a wheelchair is one of the ways through which your work environment can be accommodative to all people regardless of their bodily shortcomings.

 Make changes to the job tasks
Due to a disability, an employee who could comfortably perform heavy tasks in the past might have to take on lighter duties. Paying attention to the current needs of the employees and consulting with disability experts can help you come up with job tasks that the employees seeking accommodation can comfortably handle.

One piece of advice that I have always shared with my clients is never to ignore any legal responsibilities because the subsequent repercussions can be heavy on the business. Put simply, don’t ever think of an employee requesting a reasonable accommodation as someone who is requesting “vacation.”  That is a totally separate topic in and of itself.

Legal consultation is, therefore, an essential service for anyone looking to be compliant with employment laws and especially the ADA. For a much more detailed guide, straight from the horse’s mouth (the EEOC), you can take a look at this page:

Legal Ramblings

How To Legally Discipline An Employee Without Getting Into Hot Water

Running a business requires some level of discipline from both the employer and the employees. A workplace with highly disciplined personnel provides the most conducive work environment for everyone associated with a business. Among the relationships regulated by statute is the employer-employee relationship, the regulating statutes being employment laws.

Many states have in place employment laws applicable to their residents; therefore, employers need to establish laws applicable to businesses at the state and federal levels. The constant worry that most employers subsequently have is how to legally discipline an employee without getting into hot water?

One fact about an employer taking disciplinary action against an employee is that effecting discipline on an employee is not illegal unless the disciplinary measure employed violates employment laws’ provisions.

Tips on how to legally discipline an employee

1. Seek knowledge on the status of employment laws on disciplining employees
The good news about the employee disciplinary measures is that employers have the freedom of formulating rules applicable to their business. While doing so, there are statutes that employers must comply with or risk repercussions. For example, older employees fall in the protected class, guarded against discrimination on the grounds of age.

The Age Discrimination in Employment Act of 1967 outlaws any form of discrimination when employing or during the employment duration of older employees. Therefore when an employer is taking disciplinary action against an older employee, it is important to ensure that any motive that would point towards discrimination is addressed internally before any information spills out.

The Age Discrimination Act of 1975 gives provisions under section 6103(b) of actions that count as nonviolative, which, if duly followed by an employee, can guard against lawsuits arising from disciplinary measures. Understanding most employment laws require legal knowledge; therefore, an employer who seeks to understand the legality of the disciplinary measures used within their business should consult with an employment attorney for proper interpretation of the law.

2. Ensure internal rules include clauses on termination of the contract
States like Texas are employment at will states. However, to retain the best talent in a business, an employer might consider hiring some employees on a contractual basis with specific clauses governing the employment relationship. While an employer can hire and fire at will, breach of contract is a ground for instituting an employment dispute citing wrongful termination.

A good attorney can help draft an employment contract factoring in instances that warrant termination even if an employee is employed on special contract terms. Additionally, internal business laws constitute the evidence employers can rely on if an aggrieved employee decides to sue. Therefore employers need to ensure that the internal business laws have a clause on termination at will.

Before entering into an employment relationship, the internal business laws are some of the documents employees get to sign to prove they have the knowledge and are agreeable to the terms of employment engagement. Hence, they can’t claim a lack of knowledge later on. For a business to have laws clear laws that are properly worded, talk to an employment law attorney.

3. List the dos and don’ts in the business
Employers need to have definite dos and don’ts for an employer-employee relationship. Some employers use an employee handbook with a clear set of dos and don’ts within the business environment or during business transactions. Other employers prefer online platforms like an employee portal where every employee can access all work environment rules.

Some of the rules in the handbook or portal can include the following:

 Work attire
Discrimination based on dress code is not new; hence, every employer must avoid any discriminatory provisions on dress code. Some religions require their faithful to adorn specific attires at all times. Therefore it is crucial that the rules on work attire do not appear as discriminative to persons of a particular religion or background.

Most importantly, employers need to be clear on work attire expectations by stating what employees are expected to wear. If you want to dive deeper into the whole idea of “dress code” SHRM has a good overview here. We also delve much deeper into this here.

 Regulate employee behavior
The background of an employee might dictate behavior. Therefore, what might be deemed common etiquette might be foreign to an employee, creating awkward or offensive situations. Therefore employers have to regulate relationships between employer-employee, employee-employee, employee-client, employee-competitor, among many others.

Also, with technology having taken over relationships, businesses, etc., most people are mobile phone addicts. When employees spend most of the business hours browsing the internet, the business ends up being at a loss. The modern-day challenge of mobile phone addiction, even at the workplace, must be addressed.

Among the intentions of running a business is to help attain life goals, and such goals can’t be realized with a bunch of underperforming employees. Employers need to set either individual or group targets for their employees.

An employer can adopt the weekly, monthly, or quarterly target dependent on preference or the business structure. After that, conduct evaluations after lapse of each set timeline to ascertain whether the targets have been met and proceed to forge the way forward for those not met.

 Unbecoming conduct in the workplace
Drunkenness, violence, and theft are among gross misconduct behavior. As an employer, entertaining such acts can result in a bad business image. Immediate termination of employees engaging in unbecoming conduct is often acceptable even without undertaking disciplinary measures.

4. Seal every window for favoritism
Favoritism at the workplace is a possible reason for legal action. Managers are known for picking sides when effecting disciplinary measures. An aggrieved employee might take offense and take legal action against your business.

A managerial team forms a crucial part of business image, and disciplinary measures used are done on behalf of the employer pursuant to the employment relationship. While some managers are professionally trained, there are those who have grown on the job and might lack some important guidelines on proper management and, in particular effecting disciplinary measures.

Therefore an employer has an obligation to ensure the managerial team is not jeopardizing the business. Some tips employers can secure their business include:

 Hold continuous training sessions for all managers while paying attention to business disciplinary measures
 With the availability of online platforms, create a managerial portal where managers can discuss disciplinary measures and subsequently effect reviews for those that appear too lenient or strict.
 Listen to employees. Conflicts between the management and the sub-ordinates are not new, but when employees speak out about favoritism, listen. Such information might help in guarding a business against unnecessary lawsuits.
 Subject managers to disciplinary action. A manager is also an employee and can equally face disciplinary action. Therefore if a manager violates the set disciplinary guidelines, ensure they also face disciplinary action.

5. Decide on the most appropriate disciplinary measures for the business
There are various disciplinary measures employers can undertake. Employment disciplinary actions are meant to realize a result beneficial to both parties and not necessarily administer punishment. Notably, some disciplinary measures might have a financial liability on the business; therefore, when deciding the best suited disciplinary action, employers need to thoroughly consider the impact it has on the business and whether the result is worthwhile. As an employer, you can choose to use:

 The rehabilitative approach. Employees are valuable business parties; therefore, employers might want to rehabilitate them through training aimed at helping the subject employees work on their shortcomings.
 Warning and suspension, among many others.

6. Ensure adherence to set rules
With a managerial portal accessible to all the managers. As an employer, you should ensure your management team adheres to the discipline regulations and is held accountable if in violation.

If you can follow the above ideas, and most importantly, if you can be consistent in your approach to employee expectations and discipline, you will be well on your way to staying out of “hot water” when it comes to disciplining your employees. However, if you deviate from your own rules, or apply them haphazardly, you will find yourself in a world of trouble and the potential of a lawsuit.

Until next time, those are my thoughts…


Legal Ramblings

Start a Law Blog…That’s What My Son Told Me To Do

I guess now I can be a cool kid…

Longtime lawyer, technologically impaired, closer to 60 than 30….

Interesting the things I could say to describe myself. My name is John and I’ve been practicing law for longer than you’ve likely been alive. I have a wife, two grown kids, a thriving legal practice. But guess what? I’m bored to tears. The pandemic that we are currently in has turned our whole world upside down, me included.

I was speaking to my son about the boredom that has set in for me…. Endless days in the house, can’t go outside much (after all I’m in the “risky” category” due to my age and health). The worst part? I don’t really have any hobbies or interest in any hobbies. My son suggested that I start a blog discussing the law (which is something I love) and use it as an outlet to say all the things I can’t really say to partners or clients.

Since I’ve been an employment attorney for most of my adult life (save for that quick stint into personal injury….oops) I think I will write about those things that I know about. My goal here, is to share some general wisdom about some key aspects of law as it relates to employers, employees, and how to navigate this tricky employment world that we live in. After I cover some general topics, my goal, my real intention with this blog, is going to be to give you insight into the things lurking in the deep dark crevices of my brain. Those things in employment law that are “hush hush.” I’ll save those juicy details for down the road but let’s just say, I’ve always wanted to be a John Grisham type and I have the background of stories to give me inspiration.

So off we go…

I’ll start by writing some general informational stuff about employment law, discrimination, workplace harassment, diversity, and wage and hour issues. I’ll also cover a plethora of Human Resources topics since most of my time with “clients” are spent with the HR Team.

Let’s hope I don’t bore you to tears…but….I guess I’m not too concerned since my whole goal here is to just kill some boredom of my own!!

Finally, I think it’s smart if I just use my first name during this whole blog. I still have an active practice and if I finally get around to writing those “John Grisham” style stories from my past, I will want to remain anonymous. I’ll also have to change those names as well I guess.

I hope you’ll join me in this adventure!


p.s. I guess since I’m a lawyer I should also add that this is truly my “personal” blog and is not associated with my own law firm or any other law firm. These are my opinions and you should contact your own attorney before acting on any writings of this blog. Yes, I’m an attorney but I’m not YOUR attorney and you should always seek legal advice before taking any other actions in your business (especially from reading something on the internet).