EEOC Issues Long-Awaited Report on Harassment in the Workplace

In January 2015, the federal Equal Employment Opportunity Commission (“EEOC”) established a special task force to study harassment in the workplace.  That task force spent a year and a half studying the “myriad and complex issues” involved in workplace harassment.  Last month, the EEOC task force published their formal findings and employer recommendations.

By way of background, the EEOC task force summarized the latest data on harassment in the workplace.  That data revealed that, for FY 2015, harassment claims brought to the EEOC consisted of the following:

  • 45% alleged harassment on the basis of sex
  • 34% alleged harassment on the basis of race
  • 19% alleged harassment on the basis of disability
  • 15% alleged harassment on the basis of age
  • 13% alleged harassment on the basis of national origin
  • 5% alleged harassment on the basis of religion

The data also revealed the harassment continues to be a costly problem for employers:

  • $125,500,000 was secured by the EEOC in FY 2015 for claimants during the pre-litigation process
  • $39,000,000 was secured by the EEOC in FY 2015 for claimants during litigation
  • Employers have a 11.7% of having an EEO claim brought against them
  • 19% of EEO matters have a defense and settlement cost that averages $125,000 per claim

After an exhaustive review and analysis, the EEOC special task force concluded that:

  • Workplace harassment remains a persistent problem
  • Workplace harassment too often goes unreported
  • There is a compelling business case for stopping and preventing harassment
  • Leadership and accountability are critical to success
  • Training must change — new and different approaches must be examined

Based on these findings, the EEOC special task force made the following employer recommendations:

On leadership and accountability:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted.
  • Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction.
  • In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

On developing proper policies and procedures:

  • Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations) and should establish procedures consistent with the principles discussed in this report.
  • Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
  • Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the behavior(s) at issue and the severity of the infraction. Employers should ensure that discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of their policies, reporting systems, investigative procedures, and corrective actions put into place by those employers, in a manner that would allow research data to be aggregated in a manner that would not identify individual employers.

On training and compliance issues:

  • Employers should offer, on a regular basis and in a universal manner, compliance trainings that include the content and follow the structural principles described in this report, and which are offered on a dynamic and repeated basis to all employees.
  • Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information – even before such harassment reaches a legally-actionable level.
  • Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.
  • Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of trainings, particularly in the context of holistic harassment prevention efforts, in a manner that would allow research data to be aggregated and not identify individual employers.

You can read the EEOC special task force’s full report here.

 

Leave a Comment

Filed under Employment & HR

SF Minimum Wage Increases to $13.00/hr

Today, the minimum wage for workers in the City & County of San Francisco goes up to $13.00 per hour, up from the previous $12.25 per hour.  This contrasts with the state’s current minimum wage, which is $10.00 per hour.

In addition to San Francisco, several other California cities have local ordinances that set the minimum wage in those municipalities higher than the state’s $10.00 per hour minimum wage.  These include:

Oakland — $12.55 per hour

Emeryville — $13.00 per hour (fewer than 55 employees), $14.82 (56 or more employees)

Berkeley — $12.53 per hour (effective 10/1/16)

Richmond — $11.52 per hour

El Cerrito — $11.60 per hour

Santa Clara — $11.00 per hour

Sunnyvale — $11.00 per hour

San Jose — $10.30 per hour

Palo Alto — $11.00 per hour

Mountain View — $11.00 per hour

Los Angeles — $10.50 per hour (26 or more employees)

Pasadena — $10.50 per hour

Santa Monica — $10.50 per hour (25 or more employees), all hotels $13.25 per hour

Malibu — $10.50 per hour

San Diego — $10.50 per hour

 

Comments Off on SF Minimum Wage Increases to $13.00/hr

Filed under Employment & HR, General Business

California Court Issues First-Ever Ruling Recognizing Associational Disability Discrimination

The California Court of Appeals has, for the first time ever, held that healthy employees without any disability — but who are “associated” with a disabled person who needs their assistance — are protected under California’s disability discrimination law.  Thus, as a result of this decision, California employers are now obligated to engage in the “interactive process” with these healthy employees and to grant them reasonable accommodation to allow them to assist disabled third parties.

The case, entitled Luis Castro-Ramirez v. Dependable Highway Express, concerns an employee who notified his employer on the very first day of work that he had “daily obligations at home” relating to administering dialysis to his disabled son.  The employee’s first supervisors were supportive and gave the employee shift times that allowed him to perform his daily duties for his son.  However, three years later, after many positive performance reviews, a new supervisor was put in charge.  This new supervisor assigned work shifts to the employee that prevented him from attending to his son.  When the employee asked to have his old schedule back, and again explained his daily required duties for his disabled son, the supervisor refused.  The employee was then fired when he refused to accept the shift times assigned by his new supervisor.

The Court in Luis Castro-Ramirez v. Dependable Highway Express admitted that the federal Americans with Disabilities Act (“ADA”) required employers to make reasonable accommodation only to employees or applicants who were themselves disabled.  But California law is different, the Court ruled.  Under California’s disability discrimination law, the Fair Employment and Housing Act (“FEHA”), the term “disability” is explicitly defined to include associating with someone who has a disability.  Thus, the Court concluded, when FEHA says that “employers must reasonably accommodate ‘the known…disability of an applicant or employee,’ the disabilities that employers must accommodate include the employee’s association with a physically disabled person.”

Now, even healthy California employees are protected by California’s disability discrimination  law to the extent that healthy employee provides assistance to or otherwise “associates with” a known disabled person.  Obviously, this ruling greatly expands employee protections in California and adds significant new burdens on employers.  Therefore, this case may very well be appealed to the California Supreme Court.  Until then, however, the decision in Luis Castro-Ramirez v. Dependable Highway Express is the “law of the land” in the 2nd Appellate District in California, which includes Los Angeles County.  Stay tuned for additional updates!

You can read the decision in Luis Castro-Ramirez v. Dependable Highway Express here.

Comments Off on California Court Issues First-Ever Ruling Recognizing Associational Disability Discrimination

Filed under Uncategorized

U.S. Department of Labor Issues New Overtime Regulations

Determining when an employee gets overtime — and when an employee can be considered “exempt” from overtime — is tricky business in California.  Penalties can be extraordinarily severe for an employer who improperly classifies a worker as “exempt.”

In general, under current California law, every employee who works over 8 hours in a day or 40 hours in a week must be paid overtime unless that employee (1) fits within one of the recognized exemptions (i.e., executive exemption, administrative exemption, professional exemption, or highly-paid computer worker), and (2) is paid a salary that is at least 2x the state’s current minimum wage.

The state’s current minimum wage is $10 per hour.  Therefore, the minimum salary that an exempt employee can be paid is $20 x 8 hours/day x 5 days/week x 52 weeks/year, or $41,600 per year.   Therefore, under current California law, an employee making less than $41,600 can never be considered exempt from overtime even if that worker falls within one of the recognized exemptions.

Earlier today, however, the U.S. Department of Labor issued new overtime regulations that set the minimum salary at $47,476.  The new regulations allow employers to use non-discretionary bonuses and incentive compensation (including commissions) to satisfy up to 10% of this new salary level.

The new regulation becomes effective on December 1, 2016.  Accordingly, effective on December 1, 2016, a California employee must be making at least $47,476 and fall within one of the recognized exemptions in order to be properly considered exempt from overtime.  The new regulations did not change the duties that must be met in order to fall within the recognized exemptions.  Only the minimum salary has been changed.

This new regulation will impact employees in other states far more than California.  That’s because California already had one of the highest minimum exempt salary requirements in the nation.  But if you are a California employer and you have an exempt employee who earns less than $47,476, you will need to raise that employee’s salary if you want to keep that employee as exempt from overtime.

You can find FAQ’s about the new federal regulation here.

 

Comments Off on U.S. Department of Labor Issues New Overtime Regulations

Filed under Employment & HR

Common Legal Mistakes Made by Startups

Inc.com published an article today entitled, “The Dumbest Legal Mistakes Early Startups Make.”  The article, written by Alumnify CEO A.J. Agrawal, asserts that the “dumbest” legal mistakes made by startups include:

  • Not having written LLC operating agreements
  • Choosing the wrong corporate entity
  • Failing to keep proper records
  • Using someone else’s legally protected name
  • Commingling accounts and money
  • Not protecting intellectual property
  • Failing to take into account employees
  • Not thinking about state laws

I agree with these as common mistakes, but I think there are many others too:

  • Choosing a company name that is not easily protectable
  • Not having founders’ agreements
  • Failing to comply with state and federal securities laws when issuing equity to c0-founders, angels, etc.
  • Not having a vesting schedule when issuing equity to co-founders
  • Failing to create a proper HR infrastructure
  • Failing to create and use standard form contracts written to benefit the startup
  • Not having a solid startup team in place from the beginning (lawyer, accountant, banker, insurance broker, etc.)

You can find the Inc.com article here.

 

Comments Off on Common Legal Mistakes Made by Startups

Filed under General Business, Startups & Entrepreneurs