A Post Harvey, Moore, Louis C.K. World

It is everywhere.  People you thought would never do it…they have done it.  People you respected, want to respect, can no longer respect, are facing sexual harassment charges, and their reputations, businesses, and livelihoods are going up in flames.  The world is changing because women are finding their collective voice to face their harassers and to change the workplace culture.  It’s about time.  But, what will this month’s headlines do to evoke change?  And what role do you, as an employer, have in creating a non-hostile workplace?  If we can learn anything from the “#MeToo” movement, it is that harassment is pervasive, often done behind closed doors, and we can no longer pretend that it does not happen in our businesses, our industries, or by people we like.

With this topic at the forefront of our social consciousness, it is the right moment to look at your own business culture.  Has management set the tone as to what is acceptable behavior? Do your employees tell inappropriate jokes, or email offensive cartoons, or work sexual innuendo into their watercooler conversations?  Do your employees gossip about how people dress or their dating behavior, and do you join in? While the stories of men pinning women in elevators and disrobing in front of them in hotel room meetings is clearly actionable conduct, a viable sexual harassment claim does not require such egregious acts.  In California, the legal standard is that the harassment be severe OR pervasive.  Severe conduct must be sufficiently extreme as to change the terms and conditions of employment.  The court looks at whether the harassing conduct unreasonably interfered with an employee’s work performance, among other factors. Pervasive conduct is conduct that happens continuously and in a concerted manner (i.e. a manager calling women derogatory terms in every day conversation, or employees being leered at weekly by a delivery person, while the boss disregards their complaints).

Though most of the stories we are hearing about concern a male harassing a female, the law recognizes that harassment can be female on male, or by the same sex.  The Fair Employment and Housing Act (“FEHA”), explicitly states that sexually harassing conduct need not be motivated by sexual desire. California Government Code § 12940(j)(4)(C).  To be sued for sexual harassment, you need only have one employee.  Under both federal law (Title VII) and the FEHA, sexual harassment can occur between members of the same gender if the plaintiff can establish that the harassment amounts to discrimination because of sex.

So, what can business owners do to change this behavior that often happens behind closed doors, and that subjects them to extreme liability? For one, having an employee handbook that clearly sets forth the laws and expectations of acceptable behavior at the outset of the employment relationship is a good start.  However, having an employee handbook with a harassment policy that is not spoken about, nor upheld is useless.  Second, employers can strengthen their position that the company abides by its harassment policy by training managers how to spot inappropriate conduct and how to properly address complaints by victims.  Though California legally mandates that managers receive sexual harassment training (every two years) for companies with 50 or more employees, it is a wise business decision to train all employees, regardless of company size. Third, a company must act when violations of law have been proven.  As we have learned from the various scandals in the news, those who knew of the harassers’ proclivities to behave badly, are just as culpable for enabling the offensive behavior in a cone of silence.

Human nature will not change overnight, but cultural norms as to what is acceptable behavior is evolving.  Thanks to the bravery of women and men who have come out of the shadows to name their harassers, it’s a new world, and the responsibility of employers to create workplace cultures of respect has never been greater.   For more information about how you can better protect your company from sexual harassment claims, please contact the lawyers at WorkWise Law, PC.


To Telecommute Or Not To Telecommute- That is the Question For Employers

IBM recently implemented a dramatic change, announcing that they are ending telecommuting at their company, which not only impacts the hundreds of thousands of employees who work there, but could have an impact on companies around the United States and the world.  Overall, in the United States, about 25% of all employees work remotely all or at least most of the time.

IBM is not the first large company to make such an announcement.  Yahoo surprised the world in 2013 with this same announcement. Best Buy and Reddit made similar changes in the last several years.  The primary reason for ending telecommuting is the idea that working together in a physical location is the key to innovation.

Experts point out that there is tremendous value in the “water cooler effect”- having employees sitting around talking to each other about new, innovative ideas that could help benefit the company.  Employees have been found to communicate and collaborate much more effectively when they are working in close proximity to one another.

But before any telecommuters reading this article runs out of their house to buy conservative work clothes to prepare for the inevitable return to the workplace, rest assured… there is tremendous evidence out there that continues to support the benefits of the employee who works from home.  Nicholas Bloom, an economics professor at Stanford, authored a study measuring the productivity of employees who work from home.  The results indisputably showed that remote workers put in more hours and took less time off.

However, the argument that employees with creative jobs should be in the office to brainstorm and collaborate with fellow employees is compelling.  It is very hard to find a solid substitute for face to face interaction, which very often leads to new, original ideas. But what about the employee who is engaged in the operational side of business? If an employee is doing data entry, for example, is it necessary to sit around the water cooler and discuss new ideas of typing in numbers? The argument for working together in the same physical location is therefore not quite as strong.

There are tremendous benefits to both the employer and employee when an employee is given the opportunity to work from home or have some other flexible work arrangement.  In many situations, such an arrangement can be a win-win for the employer and the employee. Employees that are able to deal with pressures at home are likely to be more productive when they are on the job.  There are fewer distractions at home (albeit there are different distractions), such as chatty co-workers and other office interruptions.  At-home employees tend to log more hours than employees that work in the office, in that they take shorter breaks, work until the end of the day,  and are liberated from the daily time-consuming back and forth commute.  Moreover, sick days for employees who work from home are significantly less.

If an employer’s goal is to engender loyalty to help reduce employee turnover, then flexible work schedules can be very useful to help move the employer towards that goal.  It has been shown time and time again that employees who are given this flexibility are happier and less likely to quit.  Additionally, employers can oftentimes find highly qualified employees who work in a location where there is no physical office.  Employers not only save money by not having to go through a costly hiring process, but they save money on office space and furniture.

There are some important issues to consider if you are an employer that either presently allows telecommuters or is considering allowing for employees to begin working from home. First, employers must be aware that by allowing employees to work from home, there is less control over the employee, thus opening up the employer to potential risk.  If there is not some system put into place that measures the productivity of the employee, then it is very hard to track whether the employee is properly performing.  Having regular communication and both formal and informal evaluations can be helpful to make sure that the employee is staying on track.  Moreover, an employer should be aware that if the company has confidential information and trade secrets, the employer has less control over this when an employee has access to this information from home.

For these reasons, it is highly advisable for  an employer to protect itself with telecommuting employees by requiring every employee working from home to sign a telecommuting policy.  A telecommuting policy, therefore, minimizes risk by setting out expectations for the employee and explains the employer’s responsibilities.  A properly drafted telecommuting policy can help define eligibility to telecommute, provide a specific procedure for requesting approval to telecommute, explain employee’s responsibilities, and remind employees that they are expected to comply with all employer policies.  This document can be incorporated into an employee handbook or used as a stand-alone policy document if and when it applies to a specific employee.  Always remember that if you, as an employer, have never authorized telecommuting in the past, you could always put into the document that it will be for a trial period, and then at the end of that time period, there can be a reassessment to determine whether such an arrangement is working.

Nannies, Housekeepers, and Gardeners, Oh My! – Am I an Employer?

Many of us need the valued help of others to make our lives run smoothly. I, for one, would not be able to be a practicing attorney and mother of two busy boys, without the assistance of baby-sitters and the woman I call “my fairy princess,” Vicky, our housekeeper. When I first brought someone into our home, I never thought of myself as an “employer.” I thought about it as two people having different needs that served a similar purpose (i.e. I needed to work, or go grocery shopping, or take a shower), and the baby-sitter needed money to support their livelihood. I did not consider the legal ramifications of this employment relationship. I assume that many of you have a cash arrangement and an understanding about hours, and that the idea of filing quarterly tax statements and taking out deductions for disability insurance, and the like, is a more daunting task than you want to handle. Well, before you stick your head in the sand (as I once did), there are some things you should know about when to declare a household worker an employee, and what legal requirements attach when that threshold has been met.


If you pay wages to people who work in and around your home, you may be considered a household employer. Types of household workers, include, but are not limited to: baby-sitters, caretakers (who do not work with an agency), housekeepers, gardeners, pool maintenance workers, cooks and au pairs. People who are not considered household employees are: carpenters, nurses from a nursing registry, electricians, private secretaries, tutors, workers from an employee leasing service or provided by an independent business. The worker is an employee if you control, not only what work is done, but how it is done. It does not matter if the worker is part-time, temporary, or full-time, or that you hired the person through an agency.


You must report a new hire or someone you have re-hired to the New Employee Registry (NER) within 20 days of their start work date, which is the first day that they have performed services for you that were subject to wages. You are also required to file Employer of Household Worker(s) Quarterly Report of Wages and Withholdings, if your employee meets the criteria described below.


The answer to this is, it depends. Now, if numbers scare you the way they scare me (I was a public policy major in college to avoid math), then hold onto your hats. I will simplify it the best way I can. If you employ one or more people to perform work in your home and pay cash wages of $750.00 or more in a calendar quarter, you must register with the Employment Development Department within 15 days after paying the $750.00 in total cash wages. The EDD has set up an online portal for filing this, called E-services for Business. It is fairly intuitive to use. Meals and lodging are not counted towards the $750.00 cash wage threshold. So, if you have a live-in nanny that you pay less than $750.00 in a calendar quarter, you do not have to count the meals or room provided to him/her as part of the cash wages requirement. You do, however, have to count the meal and lodging amount in your taxes if you pay more than $750.00 in cash wages. Thus, if you pay $750.00 in cash wages and meals worth $75.00, you must register the worker as an employee, and withhold State Disability Income (SDI) on the entire $825.00. There is another threshold you must be aware of as well, if your cash limit is less than $1,000.00 in a quarter period (without meals and lodging), you do not have to pay towards Unemployment Insurance (UI) and Employment Training Tax (ETT), but you must register, report the wages and withhold SDI on the amount of wages + meals and lodging. So, to sum up: if you pay $750.00 or less in a calendar quarter, you can continue to stick your head in the sand; if you pay more than $750.00 in cash, you must register and report wages and deduct SDI; if you pay more than $1,000.00 per calendar quarter, you must register, report wages, and deduct all applicable state taxes.


Yes, you must pay sick time even if you only have 1 employee! Household employers in California must pay up to 3 days (24 hours) of paid sick time each year, so long as their employee works at least 30 days. The employee may start using their sick time 90 days after they begin working for you. Employers can frontload their sick time pay at the beginning of the year, or can have an accrual system, whereby the employee receives one hour of sick time for every 30 hours worked. Sick time can roll over to the next year, but can be maxed out at 48 hours (best to have this in writing). If the employee is terminated, employers do not need to pay for unused sick time.


If your nanny, caregiver, or other household employee drives their own vehicle on the job, you must reimburse them. The current federal mileage reimbursement rate is 53.5 cents per mile, and covers the cost of gas and general wear and tear on the car. Household employers must also carry workers’ compensation insurance, to help with medical expenses and lost wages should the employee have a work-related injury or illness.


Nannies are entitled to overtime pay equal to time and a half if they work more than 9 hours in one day or 45 hours in a week. This includes household workers, such as nanny, housekeeper, maid or personal attendant. Nannies may be paid on a salary if the amount they receive is at least as much as would be required under the minimum wage laws that comply with the Federal Labor Standards Act. In California, the minimum wage is higher than the federal minimum, and the employer must pay the higher amount. The current minimum wage as of January 1, 2017 in California, varies by city. (You can look up your city’s minimum wage at https://www.dir.ca.gov/dlse/faq_minimumwage.htm)


Household employers who do not properly withhold taxes are subject to criminal and civil penalties. The criminal charges are mostly levied upon those who act intentionally to defraud the government, as opposed to those who act out of ignorance, or neglect. However, civil penalties and interest on wages that have not been properly paid may attach regardless of intent.

Disclaimer: The content of this article is offered only as informational and should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter.

The “Business” of Practicing Medicine: The Top 5 Mistakes Doctors Make

Doctors who run their own practices have to be superhuman in a sense. Not only are they expected to practice their medical specialty to a high standard of care, they are required to keep abreast of electronic reporting compliance, employment laws, OSHA, payroll, HIPAA requirements, marketing, collections, and so much more. It is no wonder then that mistakes (unrelated to medical malpractice) are made, costing doctors time, money, and stress. Below are the five biggest mistakes that medical practitioners make in the employment law field, from my perspective as an employment attorney, who would not have the first clue how to suture a patient’s stitches.

1. Problematic Hiring Practices That Lead To Turnover

It is well known that there is greater employee turnover in a medical office than in other industries. There are many possible explanations for this, one being that unlike other industries, in the medical office, there is little or no room in which an employee can grow. An administrative assistant who is in charge of scheduling the doctors and billing, for example, could never move into a higher up position of being a nurse or a doctor without obtaining a new degree. This is why it is so important that a doctor running his or her own practice implement good hiring practices. Spending the time to find good candidates and then properly screening and interviewing them can prove to be effective in preventing such high turnover. Doctors should take time crafting the requirements of the job before posting the position, weeding out those applicants who are not trained or experienced in a particular area and therefore likely to quit or be fired for a responsibility they were never trained to do. Furthermore, there are a host of legal requirements as to what information an employer may gather about a potential applicant, and which questions invade that person’s privacy rights. It is good practice for doctors to run a background screening on viable candidates, but be aware that the candidate’s permission must be obtained and the screening must comply with state and federal laws.

2. Wage and Hour Violations and Misclassification

Wage and hour laws change constantly, and the practice of properly accounting for all time worked is easier said than done. Doctors, in particular, have irregular hours and situations in which their staff assist them beyond a typical set schedule. Nurses make calls from home; assistants stay late to deal with medical emergencies; so how is that time captured? The issue comes up frequently in medical offices, where employers are not properly applying overtime laws to their staff. Very simply, the law in California states that a nonexempt employee working more than 8 hours receives time and a half; if an employee works more than 12 hours, they receive double time. Federal law provides that if an employee earns less than $47,476 in a twelve month period, they cannot be exempt from overtime, regardless of their job duties and responsibilities. There are also laws that provide factual distinctions between exempt and nonexempt positions, depending on factors such as independent judgment, supervision, control of hiring/firing,etc . If an employer fails to properly classify their employees or pay earned overtime, the employer can be subject to significant penalties and fines, including up to three years of back wages, treble damages, attorneys fees, waiting time penalties and more. It is a good idea to have an expert review the classifications of employment and payment policies to make sure the practice is being run lawfully.

3. Physicians Micromanage and Are Not Great Delegators

The way in which doctors are trained when they are residents in a hospital offers interesting insight into why doctors become difficult bosses. As residents, there is an unquestionable hierarchy amongst the attending physician and the residents. Even an outside observer can tell from watching the interactions between the attending and the residents who is the “boss” and who are the “underlings.” This constitutes the training that doctors are receiving that is then transferred to their work as “CEO” of their medical practice. When a CEO dictates rules and orders to their employees, it makes the staff feel like they are not a part of the team. This scenario is compounded by the fact that doctors are typically not the greatest delegators. When a subordinate feels micromanaged, they are likely to feel incompetent and unfulfilled in their jobs. Managing staff properly may not come naturally to a doctor, and this can create serious problems when trying to manage an office with many different tasks and responsibilities. Delegating the administrative tasks (i.e., billing, scheduling appointments, documenting visits, ensuring that the medical supplies are properly stocked, etc.) to the employees trained to do these tasks will empower staff and give them greater job satisfaction. Doctors should be able to acknowledge that there are certain functions involved in running an office that would be better handled by an employee rather than by them. Empowering staff is a wonderful gift to give employees and leads to greater productivity and loyalty .

4. Lack of Insurance Against Employment Claims

While all doctors carry medical malpractice insurance, EPLI insurance (Employment Practices Liability Insurance), which provides coverage to employers against claims made by employees alleging discrimination, wrongful termination, whistle-blower violations, harassment, or other employment-related issues is not anywhere near as common. Premiums can be expensive, but in hindsight, defending against a lawsuit, whether meritorious or fraudulent, can be financially disastrous to a practice that has no insurance coverage. Doctors often think that an employment lawsuit will never happen to them, until it does, and it is disheartening to hear that they have not protected themselves against this unfortunate reality. In this area, it is worth the investment to be proactive, rather than reactive.

5. Failing to document an employee’s performance

California is an at-will state, meaning that most employees (unless under a specified term contract) can be hired and fired for any reason at any time. However, there are certain measures that an employer should take before they make a decision to end an employment relationship. More often than not, when an employer abruptly terminates an employee without having given a reason, or provided notice of an area where performance is lacking, an employee will run to a lawyer and claim that the termination must have been for some discriminatory purpose. How many people will admit that they were terminated for having terrible customer service skills, poor attendance, or an attitude problem if they are not given a warning by their employer that they are not meeting expectations? The answer is none. Doctors are often so busy that they fail to give feedback to employees. It is no surprise that providing regular performance reviews would fall through the cracks, but the feedback does not need to be formal, an email is sufficient. Providing job performance information is not something that should be ignored. It is an important tool that can be used to allow employees to become more successful in their jobs. Further, providing negative feedback is critical to ensuring that if the employee needs to be terminated, there is a paper trail showing that their performance had problems and they were put on notice of the employer’s expectations.

Doctors, focused on the health and well-being of their patients do not like to think of their practice as a business, but the requirements of running it in compliance with state and federal law are no different than if it was a bakery or gas station. Doctors would be well advised to get support in the areas that they are not experts in, such as employment laws and regulations, and to provide yearly training to their office managers, so as to reduce their risk. After all, a doctor would not expect their lawyer or CPA to know how to perform an echo-cardiogram, and thank goodness for that.

Bill O’What Now?

The New York times unleashed a bombshell six days ago, on April 1, 2017, revealing that five women were paid approximately $13 million in exchange for keeping silent about the sexual harassment charges against Bill O’Reilly.  All of the women accusing Mr. O’Reilly of sexual harassment either worked for him or appeared on his Fox network show, “The O’Reilly Factor.”  The allegations included verbal abuse, unwanted advances and lewd comments.  This was not the first time that Fox News had to pay a large settlement for sexual harassment claims against Mr. O’Reilly.  In 2004, Fox News shelled out $9 million to settle a sexual harassment lawsuit brought by a Fox News producer, Andrea Mackris.

Meanwhile, Fox News has not responded to any of these allegations and there has been no indication that they intend to remove Mr. O’Reilly from its network.

Last week, stories about Uber were splashed all over the internet because of the sexual harassment allegations that were continually dismissed by its Human Resources Department.  And now, here we are again, with an even larger and more public scandal.  Whether the company is a small business with 2 employees, a company like Uber with thousands of employees, or a company like Fox Network, indisputably one of the world’s biggest media empires, sexual harassment happens and regardless of the amount of resources available to the company, employers are still getting it wrong.

It seems implausible that a company like Fox would choose to ignore sexual harassment complaints of this magnitude.  Of course, it is known that Mr. O’Reilly is a powerful celebrity who brings in a tremendous amount of money in advertisement revenue. Apparently, this revenue and power also carries with it a license to commit crimes against women with significantly less power. Only now that the New York Times has disclosed the truth and companies are feeling the societal pressure to pull its advertising away from Mr. O’Reilly’s show, will justice be done for these women who had been continuously ignored and dismissed by their employer.

The hope is that if and when Mr. O’Reilly goes down for this, it will send a powerful message to our society that employers simply cannot get away with dismissing sexual harassment complaints.  The short term benefit to the company of ignoring these complaints, with the hope that they will be swept under the rug and never brought to light, will be far outweighed by the irreversible damage of a pervasive sexual harassment scandal that is brought in front of the public eye.

The bottom line is simple.  All employers, no matter how large or small, whether you are Fox News or the small corner hardware store with two employees, need to take sexual harassment seriously.  These extremely serious claims can no longer be ignored. If an employee in your company is being sexually harassed, then do a prompt and thorough investigation.  Then, depending on the results, discipline the harasser accordingly. No woman should ever have to be in a situation that these victims of Mr. O’Reilly are finding themselves in.

Disclaimer: Workwise Law, PC has not been involved in the investigation of any of the complaints brought against Bill O’Reilly and cannot affirm or deny any of these claims.

Don’t Make This Uber Mistake

The recent headlines coming out of Uber have been dominating employment law feeds and for good reason. What is taking place currently at this company is such an unfortunate situation that could have been so easily avoided if the employees’ complaints had been properly handled.

According to her written account of what took place, Susan Fowler, a site reliability engineer at Uber, did the right thing.  She reported to the human resources department that she was being sexually harassed by her manager, including being sent extremely inappropriate text messages.  Ms. Fowler took screen shots of these text messages and showed it to HR.  Allegedly, she was told both by HR and upper management that while this was certainly sexual harassment, since it was the manager’s first offense and since he was a high performer, they did not feel comfortable punishing him for what was most likely an innocent mistake on his part.  Ms. Fowler was told that she had the option to move to another team. Ms. Fowler later found out that other women at the company were experiencing similar harassment by this same manager, and so when it had happened to her, it was not his first offense as they had represented. When Ms. Fowler and the other female employees went together to complain to HR, their complaints were dismissed.  Meanwhile, Ms. Fowler was refused a transfer even though her department was having all sorts of issues.  There were a whole series of events that took place that showed that she was being blatantly retaliated against for complaining.

While this is an extreme and very public example of how a company should not handle complaints, it presents as a good opportunity for all employers to review their process for how to properly handle a complaint of sexual harassment.

Complaints are commonplace in any work environment.  The common mistake made by employers is in the way employers respond to these complaints. It is the employer’s response that is critical to ensuring that the problem does not escalate and that it can be resolved quickly and effectively.

As of April 1, 2016, the California Department of Fair Employment and Housing (DFEH) enacted regulations requiring employers to develop written anti-discrimination and anti-harassment policies.  The regulations state that the policies must (1) be written; (2)  list all current protected categories covered under the Fair Employment and Housing Act (“FEHA”); (3) state that the law prohibits all level employees from engaging in conduct prohibited by the FEHA; (4) create a complaint process that ensures confidentiality (to the extent possible); (5) have a timely response; (6) be impartial, fair, thorough, and timely investigation by qualified personnel; (7) allow for appropriate due process; (8) provide for documentation and tracking; (9) ensure that appropriate conclusions will be made and remedial actions will be taken, and (10) allows for a timely response.

By far, the most significant action taken by an employer is to simply listen to the employee and not dismiss any complaint, particularly when such a complaint involves sexual harassment or any kind of discrimination.

When an employee makes a complaint that he or she is being harassed or discriminated against in any way, there should be bells that go off within the human resources department.  This is not a complaint that should ever be ignored or dismissed.  Even if the complaint does not specifically use the language “harassment” or “discrimination,” any hint or indirect suggestion that this is taking place needs to be dealt with and responded to immediately.

The first step to take after hearing the complaint is to immediately separate the complainer and the alleged harasser.  This means two things: first, try and physically separate the two people, ideally putting them in different parts of the office where they will not have to interact; second, take the complainer out of the chain of command.  A person complaining that they are being harassed should not have to then report to the harasser, at least until the situation has been resolved.

The next step is to conduct an investigation.  In California, it is required that any sexual harassment complaint is responded to by having a “prompt and thorough” investigation.  “Prompt” means quickly. The longer an employer waits to act, the more liability they will ultimately face. “Thorough” means to interview not just the two people directly involved in the harassment, but any other employees that may have witnessed the harassment.  This can include all the employees in the same department or who work in the same general area.  The more information that is gathered, the more reliable the investigation.  Having a third party neutral consultant come in to conduct the investigation is advisable.  The employee may feel (rightfully) that the employer is biased to the company.  Possibly, the employee will be more honest with someone that is not part of the company.

Once the investigation is complete, depending on the findings, the employer needs to determine how to move forward keeping in mind what is best for the company and for the two employees.  There can be a range of consequences, including written discipline, counseling, suspension or even termination, all depending on the gravity of the offense.

The way that Uber dealt with Ms. Fowler’s complaint is startling.  As stated in Ms. Fowler’s account, the only “separation” was asking Ms. Fowler to move departments.  Uber apparently did not conduct any sort of investigation.  Instead, Uber dismissed Ms. Fowler’s complaints and even lied to her telling her this was the manager’s first offense.  Uber thought it was doing the best thing for the company since this manager was a high performer.  By dismissing the complaints, however, Uber is now apparently in serious hot water.  Former attorney general Eric Holder was brought in by Uber in an effort to reverse the damage that has been done for the purpose of doing a company wide investigation. Uber could now possibly face serious penalties that can significantly impact the company, if not shut it down entirely.  Besides the financial penalties it can now face, the reputation of the company is severely tainted; it is well known that a company can rise or fall based on its reputation.

The takeaway from this story is to take all complaints seriously and make every effort not to dismiss or minimize them. Do prompt and thorough investigations and take action to ensure that sexual harassment is being prevented in the workplace.

Disclaimer: WorkWise Law, PC is not involved in the investigation of Uber and cannot affirm or deny any of the allegations set forth by Ms. Fowler. 


WorkWise Law’s “Aha” Moment

We have a confession to make. We are lawyers who do not like lawsuits. Having been in the trenches for the last decade, working as plaintiff attorneys, we have come to realize that in the employment field, too many businesses are unaware of their legally required obligations.  One problem is that human resource professionals are spread too thin, with responsibility for hiring, firing, maintaining payroll, facilitating discussions amongst coworkers and between the employees and their supervisors, fixing broken machines, ordering stationary, and ensuring that the company is staying in compliance with all relevant employment laws.  There are few jobs in a company that carry such a broad range of duties and responsibilities.  This need for such broad expertise in so many different fields can lead to a host of costly problems.

Employment attorneys representing the employees are keyed into this issue, and shine a spotlight on the mistakes that HR makes.  Plaintiffs’ attorneys are well aware that one person could not possibly do this type of job without making some error along the way.  For example, when an employee takes disability leave, quite often, an HR professional is unaware of the proper steps of the legally required interactive process.  In our experience, many HR professionals lack sufficient training as to the nuances of these laws, which are plentiful.  Because employers are required to implement the laws properly, companies are in effect asking HR professionals to have the knowledge of an attorney.  Most HR professionals have never even heard of this process, as there is little training provided in this area.  The law, however, is somewhat unforgiving in this area.

While every attorney wants to win their case, at the end of the day, when the case is done, either by settlement, motion, or jury, the employee has lost. The experience of litigation can be treacherous. But it is more than that. Jurors are often swayed by the emotional plea made by employees who love their jobs and did not want to be forced out.  For example, there was a recent case was where an electrician worked for a major entertainment studio for over twenty years.  Fixing some lights at the company Christmas party, he fell off his ladder and severely injured his back.  The company did not follow the rules of the interactive process and he was ultimately terminated.  The electrician’s back healed and he was ready to return to work, but the company did not honor his work restrictions, as was legally required.  The company, knowing that this employee would make a great witness to a jury, ended up paying hundreds of thousands of dollars to fight and ultimately settle this lawsuit.

All of this could have been avoided if only the company had known how to implement the Fair Employment and Housing Act rules.

Our “aha” moment came when we realized that more lawsuits can be prevented through better legal guidance and training for those businesses who lack HR departments or legally experienced personnel.

In our experience, the majority of employees who bring a lawsuit do so because they feel their employer’s judgment was implemented unfairly.  Similarly, we have found that employers want to do the right thing, but are misinformed as to their legal obligations.  It is our goal at WorkWise Law, PC to facilitate healthy relationships between the company and its employees through training, advice and risk analysis.

“He’s Just a Hugger” – Employers Take Note, This Could Land You In Hot Water

The Tale of Mark The Hugger and Shelly Who Wants No Part Of It

Mark, a supervisor from the accounting department, is a hugger. When he sees a co-worker coming down the hall, he opens his arms wide and wraps them around the person tightly….maybe for a second or two longer than is socially acceptable. Bill and Jenny perceive Mark as harmless, but Shelly, the receptionist, is tense and does not want her supervisor’s hands on her. Shelly has told you, her Human Resources Representative, that Mark hugs “a lot.”

Before you dismiss Shelly ‘s statements with a comment such as, “Oh, Mark’s just being friendly,” or “he hugs everybody,” you should know that Mark’s behavior is being seen, in certain circumstances, as creating a hostile work environment. The 9th Circuit in Zetwick v. County of Yolo (Ninth Circuit, Case No. 14-17341, February 23, 2017), held that a supervisor’s unwanted and pervasive hugs (defined in this case as a hundred hugs over twelve years), can create a hostile work environment.

How Should You Address This Situation?

If you know that Mark has a tendency to hug often, whether you think there is some underlying motive or not, it is best to get in front of this issue before a larger problem presents itself. Chances are, if Shelly is uncomfortable with the hugging, other people may be as well. These employees could bring a claim of failure to prevent harassment, if the company knew about Mark’s constant hugging and did nothing to address it. You should circulate a new harassment policy that makes clear that hugging in the workplace, if frequent and unwelcome, could be the basis of a claim, and not to engage in behavior that could be perceived as unwanted. Give employees an opportunity to ask questions about the policy and gather a written acknowledgment of receipt. Second, address Mark in private, and counsel him that some people are uncomfortable with his hugs and that the employer expects him to refrain from this behavior. Document the counseling. If Mark persists with this behavior, further discipline may be necessary. Next, speak with Shelly, and ask her to document the times that Mark has hugged her that she felt were unwelcome. Tell her that her concerns are being addressed with Mark, though personnel decisions are confidential. Give her a document that states who she can talk to if there are any further incidences with Mark, or anyone else, that make her uncomfortable.

Though hugging is widely accepted in many cultures as a sign of friendship or greeting, it is not comfortable for everyone, depending on who is doing the hugging and in what manner. The Court in Zetwick, above, allowed evidence of the differences between how the supervisor hugged women versus men, and stated that a reasonable juror could conclude that these differences were not just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex,” citing, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).  To avoid a potential costly lawsuit, set the tone with a policy that advises your employees what behavior is acceptable, and do not dismiss complaints by anyone who is uncomfortable with “the hugger.”