Vigilance on Sexual Behaviors is an Essential Tool for Employers

If there’s one thing we’re learning as claims of sexual impropriety continue to grab headlines in workplaces across the country, it’s that employers often don’t effectively address sexual harassment issues until it’s too late. There’s never been much doubt that mistakes in this arena can cost a lot of money. Enter the needs for effective policies surrounding sexual harassment in the workplace and thorough training of managers. How, after all, can employers prevent damaging sexual harassment allegations if their key employees don’t know the signs of trouble and how to deal with them?

One of the big causes of sexual harassment problems in the workplace is a failure to understand that victims of sexual harassment often don’t want to complain and, when they do, frequently give only limited information. There are a variety of reasons for this ranging from fear of retaliation to a hope that bad behaviors will end on their own to a desire to get along with co-workers. When employers don’t realize this, they tend to overlook issues that might be portrayed as less significant than they really are and miss opportunities to resolve sexual harassment before it becomes a costly lawsuit. To avoid that error, employers need to institute zero tolerance policies for sexual behaviors at work and, when even a hint of it comes to their attention, investigate quickly. You never know what you might find.

In fact, workplace investigations of sexual harassment often uncover behaviors that were not explicitly raised by an initial complaint. On appropriate questioning, employees normally expand on how they feel and what they experienced. An investigation might reveal that behaviors are long-standing and practiced by a broader number of employees who are not aware of the dangers that sexual talk or acts present to their employers, even when those behaviors are ‘consensual’ or ‘don’t bother’ other employees. In many cases, sexual joking, e.g., is common at work, yet almost all employees are hesitant to complain to employers even when they are bothered by it. Almost all also have breaking points.

Employers are thus well advised to be sure they understand what goes on in their workplaces. All should review and ensure their sexual harassment policies are strong; make sure all employees get copies of the policy at least once a year; post notices regarding sexual harassment and its remedies; and train all managers, at least, about the basics of sexual harassment and how to spot its signs before things get out of control. Doing all this is not only prudent, it’s almost essential in light of recent sexual harassment stories and their impacts on victims’ understanding both that they are not alone and that protection is available for those who feel compelled to complain.

2018 Ballot Question Proposes up to 26 Weeks of Paid Family and Medical Leave to Massachusetts Employees

If a coalition group called Raise Up Massachusetts gets its way, the Commonwealth will soon have a comprehensive new law that provides paid leave to employees for a variety of personal reasons. At the recent deadline for 2018 ballot questions, Raise Up submitted a voter-supported initiative it calls a Family and Medical Leave law. If approved at the polls next November, the new law will provide up to 26 weeks of paid leave annually to Massachusetts employees.

The ballot question divides paid leave into two general categories – “family” and “medical.” Under the former, employees will be entitled to up to 16 weeks of paid family leave each year to care for ill family members, bond with their children, or address military-related emergencies. They’ll be allowed up to 26 weeks to care for a covered service member, as that term is defined by the proposed law. For an employee’s own health condition, he/she will be allowed up to 26 weeks under the medical leave portion of the proposed new law. An employee who uses either family or medical leave will generally need to be restored to the same or a similar job without losing pay or other benefits. Pay will be capped at $1,000 per week.

Wage payments will not come directly from employers under the proposed Family and Medical Leave Law. Instead, a new agency called the Department of Family and Medical Leave will be created to collect employer contributions equal to .63% of employee and independent contractor payrolls. Half of the amount paid by employers can be recouped from workers. The Department of Family and Medical Leave will create regulations to implement and administer the new law. It will make eligibility decisions, pay benefits, and adjust contribution rates periodically as needed.

If voted into law next November, the Family and Medical Leave Law will take effect 18 months later. Contributions to the trust fund, however, will begin on July 1, 2019, roughly a year before the law takes hold. As with other employment laws, the proposed statute bars retaliation against employees who take advantage of its benefits. Any negative change to the terms and conditions of employment within six months of using paid leave will be presumptively retaliatory. Punishment can include up to three times the amount of any lost wages, damages as may be incurred, and reimbursement of legal fees.

With the New Equal Pay Act Set to Take Effect on July 1, 2018, it’s Time for Employers to Evaluate their Wage Practices

The effective date of the new Massachusetts Equal Pay Act is fast approaching, and employers who have not yet begun to evaluate wage disparities between men and women need to start the process. Beginning July 1, 2018, the revised law will require that employees be paid equally for work involving similar skill, effort and responsibility. Analyzing existing wage disparities and making progress to address them will help shield employers from double the amounts of wage disparities and other penalties under the Equal Pay Act.

The new Equal Pay Act revises an existing law that, due to court interpretation, has been effectively useless to address wage disparities. It mandates that all workers be paid the same for “comparable” work regardless of gender and bars companies from ordering their employees not to talk about their pay. Courts evaluating Equal Pay Act claims will ignore job titles and focus on whether jobs require “substantially similar skill, effort and responsibility” and are “performed under similar working conditions.” Penalties under the Act are substantial and include the payment of employee legal fees, but can be abated or avoided completely by self-evaluation and concrete action in advance of July 1, 2018. Implementation of the law was delayed two years from its passage in July 2016 to provide employers time to address pay disparities.

Employers who haven’t yet done so should proceed quickly to determine whether wage inequity exists. Doing this with the assistance of counsel, either in-house or from outside the company, should permit the initial findings of an Equal Pay Act audit to be kept confidential. This makes sense given the existence of a federal law on equal pay that does not shield audits in the same way the Massachusetts Equal Pay Act does. Once an initial audit is completed, employers should decide with the advice of counsel how to address the results and whether more audit work is needed. Under the Massachusetts Equal Pay Act, progress on abating unequal pay is required before the audit will be a useful defense to suit.

Sexual Harassment in the Workplace: Recent Headlines about Sexual Harassment at Work is a Call to Action for Massachusetts Employers

image credit: pixabay

image credit: pixabay

The recent accusations of sexual harassment by powerful men against the women – and sometimes men – who work around them is suddenly shining a bright light on the issue. Shocking as some of the claims may be, the fact that sexual harassment in the workplace is a major problem in Massachusetts is no surprise. For employers, the central message from media reports about Harvey Weinstein and others is patent. Pay attention to what’s going in your board rooms, mail rooms, and everywhere in between lest you face the embarrassment and expense that sexual harassment claims deliver.

Indeed, there is no shortage of sexual harassment claims in Massachusetts. The Commonwealth has long made employers responsible for rooting out sexual behaviors at work and addressing them before they become sexual harassment. All employers of six or more must have a sexual harassment in the workplace policy that is distributed annually to their employees. The model policy includes a discussion of sexual behaviors, encouragement of internal complaints, a promise to investigate, and contact information for filing state and federal complaints. Massachusetts employers are automatically on the financial hook for sexual harassment perpetrated by managers and for behaviors by others if they don’t quickly and reasonably address them. Needless to say, the cost of even a single sexual harassment claim can be extreme. In addition to paying their own lawyers, employers face the prospect of large damages awards and orders they pay the legal fees of the employees who sue them for sexual harassment

There are several steps employers should take to avoid sexual harassment in the workplace issues. The first step is to set a workplace tone that does not tolerate sexual or other inappropriate behaviors. Employers can do this through strong policies, delivered through comprehensive employment manuals that managers can get behind in visible ways. Policies should be reviewed and updated on a regular basis to assure compliance with new laws. Managers, at least, should be trained about sexual harassment in the workplace and instructed that setting a positive example and addressing inappropriate behaviors when they occur is a critical part of their jobs. Staff should be encouraged to bring issues of concern to management’s attention, and those concerns must be addressed promptly.

Aggressive Noncompetition Suit in Massachusetts

Our client was a salesperson who was forced to defend herself against an aggressive noncompetition suit brought by her former employer, from which she resigned after many years due to work rule changes that made it impossible for her to perform her job effectively. During the course of her work, our client signed several iterations of the company’s restrictive covenants. Though the most recent was about six years old and numerous job changes had occurred since it was signed, the employer filed a suit to enforce the form agreement. It accused our client not only of soliciting its customers but of stealing its confidential information. The company sought an emergency injunction in the superior court to block our client from performing work for her new employer.

Result:  We persuaded the court to reject the injunction, and the plaintiff quickly dismissed its lawsuit voluntarily. We worked closely with counsel for our client’s new employer to present a clear and concise factual record demonstrating that she had neither taken confidential information nor interfered with her former employer’s business contracts. Advance planning was critical to our defense – we had our client turn over to us for safe keeping cell phones and other electronic devices to ensure the plaintiff could not effectively argue she retained copies of customer data on them.

Use of inside information to transition customers to the competitor

Our client was a small business victimized by two of its former employees. After one of them was alerted she’d be laid off due to the closing of her office, she surreptitiously began to solicit customers after our client permitted her to remain at work until her formal termination date. She enlisted the help of another employee, her long-time friend, and the two solicited several customers. The second employee resigned about 6 weeks after the first was let go, and the two joined forces at a competitor. They used inside information from our client to transition several customers to the competitor.

Result: Though our client did not, unfortunately, have noncompetition agreements with its employees, we were able to collect enough information about their surreptitious activities to establish claims for misuse of confidential information and breach of the duty of loyalty that an employee owes to its employer. We filed suit and obtained an injunction that barred the employees from using our client’s information and from soliciting any of its customers.

Handyman claimed he was improperly classified as a contractor

Our client was a small business that focused on the rental and sales of residential properties. In 2013, it engaged a handyman to help make repairs at the properties it managed and to upgrade them prior to rental or sale. The handyman agreed he’d work as a contractor, since he did odd jobs for others, he said, and would not be engaged on a full-time basis by our client. The relationship did not, however, last long, and, though the handyman was paid for all work he reported, he filed suit after his worked ceased. Without first serving a demand letter, he claimed he was improperly classified as a contractor when he was in fact an employee. Though his wage claim was small – less than $1,500 – his legal fees were not, and he refused to settle the case at a reasonable level. We were retained after suit had been ongoing for a period of time.

Result: Despite substantial effort, we were unable to persuade the handyman to settle at a reasonable level. The case was forced to a jury trial on what amounted to a suit for exorbitant legal fees under the Massachusetts Wage Act. After a two-day trial, our client was vindicated. The jury found that the handyman was not owed any wages. It issued a damages award of $0.

Inappropriate Sexual Behaviors by a Supervisor

Our client was an employee of a large package delivery company. After experiencing what she believed to be inappropriate sexual behaviors by a supervisor, she reported the conduct to his superior and asked that it stop. She did not file nor did she wish to file a harassment or discrimination complaint. Though she was assured by upper management that the supervisor would curb his conduct going forward, our client soon became the target of investigations into her attendance and related issues. She was fired several times for minor infractions that were previously ignored and were common among staff. Though the company rescinded the firings each time, our client ultimately declined to return to work without assurances that she would not suffer further retaliation. When the company refused to provide it, she filed suit.

Result: After many years of litigation at the MCAD that included the dismissal of the case and, in a very rare development, its reopening after our firm located a percipient witness to the retaliation and successfully argued that his testimony was fraudulently concealed by the employer, we were able to settle the case for a substantial sum just short of an MCAD trial. The entire process took nearly 10 years, but the client’s position was fully vindicated.

Multi-day Sexual Harassment Training Program For Small Business

Our client was a design and construction company of about 150 employees. After it was threatened with a sexual harassment lawsuit by a former employee, it asked us to devise a training program aimed at reducing risks of future problems. The client’s workforce includes employees of both genders and all ages. Some work solely in the office on computer screens, others work solely in the field at construction sites, and still others travel between the two, interfacing with designers and contractors. The diversity in ages, experience levels and personal outlooks on appropriate workplace behaviors in general and discrimination issues in particular created a challenge to effective communication of the information necessary to achieve the client’s objectives.

Result:  After visiting the work site and interviewing key personnel to gain an understanding of the workforce and the workplace, we devised and implemented a multi-day sexual harassment training program. Employees were grouped based on jobs performed and authority levels. Each attended a training session that covered the same general information but was designed for the particular audience. When each was completed, attendees demonstrated a working knowledge of essential sexual harassment principles.

Take Over Ownership of Existing Entity

Our client was an individual business person who operated a regional division of a large, international company. His objective was to take over ownership of the entity he managed and oversaw on his own. At the same time, the client wished to maintain close corroboration with the parent entity and continue to sell and service its software products. In order to do so, he required the formation of a new company and the creation of partnership and related agreements that would permit smooth, continuing operations. His critical objective was a seamless transition in business operations such that customers could continue to receive high quality products and services without complications during or after the transition. Achieving this goal required employees in the regional division to transfer to the new entity under our client’s supervision and management.

Result:  After addressing several complexities that arose during negotiations and contract drafting, we successfully helped the client create the several contracts needed to achieve his objectives. He soon was owner of his new business, which continued its successful operations without a hitch.