6 of One, Half a Dozen of the Other: 10th Circuit Rules Quid Pro Quo and Hostile Work Environment Harassment Theories Aren’t So Different After All

Hostile Work EnvironmentQuid pro quo and hostile environment sex harassment claims—two totally different claims—right? Or are they? While employers draw strict distinctions between these types of sex harassment, courts may not go along, as demonstrated in a recent 10th Circuit case, Jones v. Needham Trucking LLC et al.

Types of Sex Harassment Claims.

Traditionally, two Title VII sexual harassment claims exist: quid pro quo and hostile work environment. The two sex harassment theories have different meanings, have different elements of proof, and are generally referred to distinctly. In short, quid pro quo (“this for that”) means that an employee submitted to or refused to submit to a supervisor’s sexual demands and suffered a tangible employment action as a result. Hostile work environment, on the other hand, means conduct that is so severe or pervasive that it creates an abusive working environment.

So What Happened in the 10th Circuit Case?

The differences in the two theories are typically not lost on employers. In the Needham Trucking case, Jones, a mechanic, claimed in his lawsuit that he was fired because he would not have sex with his supervisor—a classic quid pro quo allegation.  However, Jones’ EEOC charge did not expressly allege quid pro quo sexual harassment. Rather, the charge alleged that Jones was subjected to “sexual remarks” by his supervisor, that he complained about those remarks but nothing was done, and that the same supervisor subsequently terminated his employment without giving him a reason why—classic hostile environment allegations. The defendants moved to dismiss the plaintiff’s quid pro quo sexual harassment claim for failure to exhaust administrative remedies. A Title VII plaintiff must, of course, exhaust his or her administrative remedies by filing a charge of discrimination with the EEOC identifying the factual-basis for the claim(s) of discrimination and/or retaliation. The defendants argued that Jones failed to exhaust the quid pro quo sexual harassment claim he later asserted in his lawsuit, conceding that he had properly exhausted a hostile work environment claim.

The United States District Court for the Western District of Oklahoma agreed, dismissing the plaintiff’s quid pro quo claim for failure to exhaust his administrative remedies. Jones appealed to the Tenth Circuit Court of Appeals, who reversed the district court.

In a 2-1 decision, the 10th Circuit held that Jones had properly raised a quid pro quo sexual harassment claim with the EEOC even though the charge did not specifically mention quid pro quo sexual harassment or specifically allege facts to meet the definition. The Tenth Circuit ruled that Jones’ allegations were sufficient to exhaust administrative remedies because they alerted the defendants to the alleged harassment and should have sparked an investigation. The Court noted that

“Both [quid pro quo and hostile work environment] scenarios lead to the same place: sexual harassment that violates Title VII’s proscription against sex discrimination in the workplace. . . . Though the descriptors matter a great deal insofar as they reveal what elements are needed to prove the specific claim of sexual harassment . . . they are not so unrelated that the facts of the two scenarios could not overlap, or that an investigation resulting from facts specific to one category could not also fall within the scope of an investigation of the other.”

The dissent did not disagree with the majority’s analysis, but rather argued that Jones had waived the argument regarding administrative exhaustion of the claim on appeal.

What Does this Mean?

Does this change how employers approach harassment claims? Probably not. This Tenth Circuit case shows that, while employers may try to bifurcate quid pro quo sexual harassment and hostile work environment claims into two distinct camps, courts may not be willing to make such a distinction, at least when it comes to the question of whether a charging party has exhausted administrative remedies.  As a practical matter, this decision may change some of the defenses raised during litigation, but it should not change how an employer handles a sexual harassment complaint or administrative charge. As with any complaint, employers should investigate broadly—looking for anything that might violate their policies. So—even if an employee complaint only mentions a hostile work environment, you still need to be sure there aren’t quid pro quo harassment allegations lurking in the wings.

EEOC Pulls the Hood Off of Employer’s Attempt to Retaliate against Its Employee

coworkersCan an employer force an employee to agree that his complaints have been adequately addressed? On April 26, the EEOC announced that Downhole Technology LLC will pay a former employee $120,000 and provide other relief after it terminated an employee who refused to do just that.

In Equal Opportunity Equal Employment Opportunity Commission v. Downhole Technology LLC, Kenneth Echols, an African-American employee, reported that white coworkers wore white hoods similar to those used by the Ku Klux Klan to intimidate him. After the report, Echols later reported that those same employees physically and verbally threatened him.

The EEOC alleged that, instead of addressing the reported incidents, Downhole asked Echols to sign an agreement stating that he had not been harassed because of his race and that Downhole had adequately addressed his concerns. When Echols refused, Downhole terminated him despite a prior unblemished employment record.

The EEOC filed suit against Downhole alleging violations of Title VII. Shortly after the lawsuit was filed and after extensive negotiations, the EEOC and the company resolved the claim which led to a two-year consent decree. Under that decree, Downhole Technology must:

  • Pay Echols $120,000 in monetary relief;
  • Give Echols a job recommendation by a senior level manager;
  • Not discuss, mention, or allude to Echols’ charge of discrimination;
  • Exclude any information regarding the charge of discrimination from Echols’ personnel file;
  • Designate and train a liaison to conduct annual training on employees’ rights under Title VII and avoiding unlawful discrimination in the workplace;
  • Adopt an anti-discrimination policy that meets minimum requirements as set out in the decree; and
  • Maintain a toll-free telephone number for employees to report any alleged discrimination.

Obviously, we don’t know what exactly happened in this case—only what the plaintiff and the EEOC alleged. However, as reported in the complaint, this case is a cautionary tale about how NOT to conclude a harassment investigation. Although, an employer has the right to ask for a waiver of past employment claims in exchange for severance payments when the relationship is ending, the significant fact here is that the employee would have continued to be employed with his complaints of harassment allegedly unaddressed to his satisfaction. Even under these alleged facts, Downhole could have just agreed to disagree with Mr. Echols—who could have then filed his harassment complaint while he continued as an employee. Downhole could then have defended the harassment complaint based on its investigation and the fact that it had stopped the conduct as soon as it was brought to its attention. Significantly, it may have been able to avoid the retaliation claim.

One Judge Finds Alabama’s Workers’ Compensation Act Unconstitutional—Now What?

Close Up Of Businessman With InjuryWorkers’ compensation laws are supposed to take the guess work out of employee injuries. If an employee is hurt at work, the statute governs, you pay the benefits and move on—right? Well, if you have employees in Alabama, some of the predictability of the workers’ compensation scheme is in question. In Clower v. CVS Caremark Corporation, Jefferson County Circuit Judge Pat Ballard ruled that two provisions of the law violate the U.S. and the Alabama Constitutions. To make matters even more interesting, because the Alabama Workers’ Compensation Act has a nonseverability clause, that means Judge Ballard finds the entire law unconstitutional.

The Offending Provisions

The provisions at issue are Ala. Code 25-5-68, which sets a weekly $220 cap on permanent partial disability benefits (PPD), and Ala. Code 25-5-90(a), which caps attorney’s fees at 15% of the compensation awarded or paid in workers’ compensation proceedings. If you want the specifics of why Judge Ballard found that these provisions violated the federal and state constitutions, read the opinion—which includes a history of the workers’ compensation law. Suffice it to say, he concluded there was a constitutional violation and that potentially throws the entire Alabama workers’ compensation world into a spin.

If this becomes the law in Alabama, this decision will change everything about employee injuries. Judge Ballard noted that he was “not blind to the magnitude nor the consequence” of the holding. The impacts that he mentioned included:

  • Medical providers will no longer be able to bill claims to workers’ compensation insurers, employers and self-insurance funds.
  • Insurers will not be able to sell workers’ compensation insurance policies or collect premiums.
  • Self-insurance funds will continue only on claims that pre-date this decision.
  • Employees injured at work will have to file tort claims for on-the-job injuries—and get no benefits while they await a verdict.

What Should We Do Now?

Judge Ballard has stayed the ruling for 120 days, so it will not go into effect at least until early September—assuming the legislature or an appeals court takes no action. The Alabama Legislature is at the end of the legislative session, so it is unlikely to be addressed in this session. We can expect an expedited appeal and a number of organizations (including insurance carriers) weighing in on the subject with amicus curiae (“friend of the court”) briefs. Once appealed, the case is likely to be stayed pending the outcome of that appeal (so there will be more than the 120-day respite).

For the law nerds out there: This decision is not binding on any court until affirmed by an appellate court, so for now it only impacts the parties in the Clower case. No other court has to follow it. Undoubtedly, some judges will jump on this bandwagon and others will reject it. Employers in Jefferson County, Alabama may see some interesting results in the next few months.

In the meantime, what can you do to get ready for a potential workers’ comp apocalypse? Frankly, not much. However, here are some ideas:

  • Talk with your workers’ compensation carrier. This could have a huge impact on their business, and they should be all over it. Make sure they know you want them to keep you updated.
  • Look at short-term disability coverage and whether you need some or more of it. If this ruling becomes the law of the state, you could end up with injured employees who no longer get comp benefits, and they will be looking for other sources of replacement income (which you probably want them to have). It might be good to think about that impact and how you would handle it.

Otherwise, we will all just have to wait and see.

Let’s See You Flex – The Working Families Flexibility Act Passes the House and Proposes a New Option for Overtime

overtime timesheetThe House of Representatives passed at least two notable measures last week.  You probably heard about the new healthcare legislation, but you may not have heard about the Working Families Flexibility Act (WFFA). Though Republican representatives were not invited to a celebration in the Rose Garden following its passage, employers need to keep an eye on the WFFA. If enacted, the WFFA would allow employers to offer employees who work overtime the choice of paid time off or time-and-a-half pay as compensation. The act would require employers to continue offering traditional overtime pay; a PTO option would simply become a legal alternative that the employee could choose.

Quick FLSA Refresher

Last year at this time, we were preparing for significant changes to the salary threshold requirement for the Fair Labor Standards Act’s (FLSA) white collar exemptions. While a Texas district court ultimately struck down those changes at the end of 2016, one benefit to that process was that many employers brushed up on the FLSA’s overtime requirements. In case you did not, though, here is a quick refresher on the basics:

  • The FLSA generally requires covered employers to pay nonexempt employees minimum wage (currently $7.25 per hour) and time-and-a-half compensation for hours worked over 40 in a workweek.
  • Covered employers (almost everybody) are employers engaged in interstate commerce or whose annual gross volume of sales or business is $500,000 or more.
  • There are a number of exemptions, and you should look closely at an employee’s duties and compensation to ensure that he or she meets all of the requirements to fall into that exemption. An employee is not exempt simply because he or she is salaried.

WFFA Chances of Passing

The WFFA serves as a reminder that offering additional PTO, sometimes called “comp time,” is not currently a lawful form of overtime compensation for private employers. The requirement for time and a half for hours over 40 in a workweek will stand unless the Senate also passes the WFFA, and that may be a longshot. All 52 Republican Senators as well as eight Democrats must vote for the act to avoid a filibuster. The act did not have unanimous Republican support in the House, and it is unlikely to garner unanimous support in the Senate. Republican Congressmen have introduced similar measures on several occasions over the years, most recently in 2013, but none has passed both chambers to change the overtime pay requirements. We will keep you posted.

With N Word, Once is Enough. Second Circuit Rules on Hostile Environment Case

boss yellingIs a single incident enough for a hostile work environment claim? It is in the Second Circuit. In Daniel v. T&M Protection Resources, Inc., the court held that one racial epithet was sufficiently severe, by itself, to create a hostile work environment under Title VII

The Facts

Otis Daniel, a 34-year-old black male from St. Vincent and the Grenadines, was a fire safety director at a Manhattan property. T&M Protection terminated Daniel for violating an unwritten policy that prohibited receiving packages while at work. Daniel proceeded pro se, and filed suit alleging a hostile work environment and discriminatory termination, seeking monetary compensation for emotional distress and back wages.  At his deposition, Daniel testified about a number of remarks made by his white supervisor which he perceived to be racially motivated and offensive, including that the property manager preferred white security personnel and comparing Daniel to a gorilla. However, he also testified to an incident in which the supervisor called him a “f****** n*****.” The district court granted summary judgment in favor of the employer, holding that Daniel’s mistreatment did not rise to the level of “severe or pervasive” harassment so as to create a hostile or abusive work environment. Furthermore, the district court held that T&M Protection’s termination of Daniel was not motivated by racial animus.  Daniel appealed and the Second Circuit reversed.

The Ruling

The Second Circuit employed a four factor test with the following factors:

  • the frequency of the discriminatory conduct;
  • the severity of the conduct;
  • whether the conduct is physically threatening or humiliating, or merely offensive utterance; and
  • whether the conduct unreasonably interferes with an employee’s work performance.

In prior cases, the Second Circuit had required a plaintiff to show a steady barrage of serious racial comments instead of merely a few isolated incidents of racial hostility. However, the court relied on some language from a prior case, Rivera v. Rochester Genesee Regional Transportation Authority, to hold that a supervisor’s use of certain unambiguous racial epithets is likely to alter the conditions of employment and create a hostile working environment, weighing heavily in the severity factor. As such, the court vacated the judgment of the district court.  Of note, the Second Circuit did not disturb the district court’s ruling on Daniel’s termination, simply addressing the hostile work environment claim.

Now What?

This decision adds to the difficult task facing employers when it comes to preventing and investigating claims of hostile work environment, especially those based on race. You must provide comprehensive training to ensure a non-discriminatory work environment. Make sure everyone understands that no level of racially offensive language is acceptable. Not only will this provide you and your employees a better place to work, it will protect against litigation. While courts still take into account the totality of the circumstances when evaluating claims of discrimination, the Second Circuit has made it clear: one really bad apple does indeed spoil the bunch.

OSHA Provides Enforcement Guidance on Workplace Violence Response

workplace hazardWhen does an incidence of workplace violence rise to the level of a federal case? The Occupational Safety and Health Administration (OSHA) has updated its guidance on just that issue. The OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. The succinctly titled Directive Number CPL 02-01-058, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence” —which became effective on January 10, 2017 — addresses when hazards created by people (i.e., violent coworker, customer, etc.) violate the General Duty Clause.

The Directive provides general enforcement guidance as to when OSHA officials should make a response to, and/or cite an employer for, a complaint or fatality arising out of an incident of workplace violence. It defines “workplace violence” broadly as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The stated purpose of the new Directive is to (1) clarify the different healthcare settings in which workplace violence incidents are reasonably foreseeable; (2) recognize corrections and taxi driving as high-risk industries; (3) identify more resources for inspectors; (4) explain the review process for settlement agreements; and (5) update guidance on hazard alert letters.

Why the Update?

The updated Directive appears to be based, in part, on data from the Bureau of Labor Statistics (BLS) about the 15,000 to 25,000 incidents of workplace violence reported each year. First, BLS says that two- thirds of the reported incidents resulting in missed work occurred in healthcare settings.  Also, BLS reported that late-night retail workers, taxi drivers, and correctional officers have reported high numbers of incidents of workplace violence.

What Does the Directive Say?

The Directive generally sets forth the steps OSHA is to follow to determine whether to initiate an inspection of a complaint or incident related to workplace violence. It also provides the basis for a citation under the General Duty Clause, the resources available to OSHA in conducting inspections and developing citations, and how Area Offices may assist employers in addressing workplace violence.

In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection. OSHA is to consider whether the employer’s work entails:

  • contact with the public;
  • the exchange of money;
  • the delivery of passengers, goods, or services;
  • a mobile workplace, such as a taxicab;
  • employment in healthcare, social service, or criminal justice;
  • working alone or in small numbers;
  • working late at night or during early morning hours;
  • working in high-crime areas;
  • guarding valuable property or possessions; or
  • working in community-based settings, such as drug rehabilitation centers and group homes.

Assuming your workplace involves some of those factors, when does a workplace violence incident constitute a violation of the General Duty Clause?  The Directive provides the following elements of a violation: (1) the employer’s failure to keep its workplace free of a foreseeable workplace violence hazard; (2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible, useful means of correcting the hazard.

Guidance on Assessing Your Risk

The updated Directive advises employers to assess their worksites to identify methods for reducing incidences of workplace violence, and counsels employers to develop and implement a well-written workplace violence prevention program. It goes on to suggest that employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

Appendix A to the Directive provides a list of potential methods for reducing workplace violence that employers should consider. Among other methods, the appendix suggests provisions that a comprehensive workplace violence prevention program should include, like a policy statement, a hazard assessment and a security analysis. The appendix also provides examples of engineering controls, including assessing plans for new construction to eliminate or reduce security risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. Examples of administrative controls include conducting a workplace hazard analysis; training employees as to workplace violence; establishing liaisons with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

You should consider OSHA’s guidance in developing and implementing a workplace violence prevention program. Make sure your employees know that they do not have to tolerate potentially violent behavior, and they need to report any such behavior. However, when you get to the suggested engineering and administrative controls, be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.


“Do You Kiss Your Mother With That Post?” Second Circuit Rules on Foul Facebook Post about Employer

Angry person behind computerThe Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage in what in the past may have been considered insubordination.

The Facts.

The defendant, Pier Sixty, is a catering company. Around the time of the incident, its employees were engaged in a union organizing campaign. Mr. Hernan Perez, a server, felt that his supervisor, Robert McSweeney, had spoken to him and some other servers fairly harshly about their work. On his next break, Mr. Perez used his phone to post a charming message on his own Facebook page. The message called his supervisor a “nasty mother f*****” and went on to say “F*** his mother and his entire f***ing family” (although Mr. Perez substituted the real letters in his words instead of asterisks—this is a family-friendly blog). He ended the message with “Vote YES for the UNION!!!!!!” The post was publicly accessible, and Pier Sixty learned about it. Subsequently, Mr. Perez was fired.

Mr. Perez and the union filed unfair labor practice charges with the NLRB claiming he had been terminated for protected concerted activities. An administrative law judge found in favor of Mr. Perez, and a panel of the NLRB affirmed that decision. Pier Sixty appealed to the Second Circuit.

What the Second Circuit Said.

Pier Sixty initially argued that the NLRB decision was not valid due to the recent finding that the NLRB’s acting general counsel, Lafe Solomon, served in violation of federal law (see our related blog post). The Second Circuit dismissed this argument by finding that the defendant failed to raise that defense at the NLRB panel stage and therefore waived that argument.

The court then turned to the substance of Mr. Perez’s post and whether it should be protected. The opinion recognized that there are situations where an employee engaged in potentially protected activity under the NLRA may act in such an abusive manner that he or she loses the protection of the act. The court held that the proper standard to be used in evaluating the comments should be the “totality of the circumstances” test found in recent social media cases.

Under that standard, the court first stated that although the message was “dominated by vulgar attacks” on the supervisor and his family, the subject matter of the message included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before” the union election. Second, the court found that the employer consistently tolerated profanity among its workers. Specifically, the employer had not previously disciplined employees for using the “f word” and other expletives and racial slurs. There was no evidence that Pier Sixty had ever discharged an employee solely for the use of offensive language. The court found that it was reasonable for the administrative judge to decide that Mr. Perez’s comments “were not a slur against [the supervisor’s] family, but rather, an epithet directed to [the supervisor] himself.” The court also found it significant that although no server had ever been fired for profanity before, Mr. Perez was fired only two days before the union election.

Finally, the court held that because the comments were on Facebook, it was not an outburst in the immediate presence of customers and did not disrupt any catering event. The court noted that social media is “a key medium of communication among coworkers and a tool for organization in the modern era.” The opinion also found significant that Mr. Perez mistakenly thought his Facebook page was private and took down the post three days later when he learned the public could see it. In conclusion, the Second Circuit ruled that the NLRB was not in error in finding that Mr. Perez’s post, although “vulgar and inappropriate,” was not so egregious as to not be protected under the NLRA.

Does this open the floodgates for cussing out supervisors?

Admittedly, the facts of this case would have most of the public feeling that Mr. Perez’s profanity-filled post should have gotten him fired. However, this opinion seems to show that the courts are becoming more tolerant of what, in the past, would have been considered offensive language. Part of the problem here was that the employer did not enforce any rules against profanity in its own workplace. If you don’t want your employees cussing, be sure to discipline them for doing so—especially if it is in front of customers. Another lesson from this case appears to be that the NLRB and some courts are taking the stance that social media posts are the equivalent of a worker standing on a box holding up a sign saying “union”—and that those comments, even if vulgar and insubordinate, will be allowed some protection. It looks like we may be in for some fairly interesting cases in the future—ones that may have to be edited for tender ears.

Thawing the ICE: Using Internal Audits to Reduce Form I-9 Exposure

Diverse coworkersAs the 100-day mark of President Trump’s tenure approaches, it’s clear that the new administration intends to take a tough, aggressive approach to immigration enforcement – and employers are sure to feel the heat. The President has already taken a number of measures designed to strengthen employer compliance with the H-1B and other legal work visa programs. And administration officials have repeatedly emphasized that the laws prohibiting the employment of unauthorized workers will be enforced vigorously.

Among other things, U.S. Immigration and Customs Enforcement (ICE) is expected to step up the use of Form I-9 administrative audits, its primary tool for investigating worksite immigration compliance. An employer hit with a Form I-9 audit can incur heavy fines and other sanctions if ICE finds that the employer is using unauthorized workers or has not properly completed Form I-9’s for all of its employees. As noted in a prior post, the U.S. Department of Justice recently issued a new regulation that significantly increases the fines that may be assessed for Form I-9 violations.

For this reason, you should consider conducting an internal audit of your Form I-9s before ICE shows up to investigate. A proactive audit gives an employer an opportunity to identify and correct errors in its Form I-9s and get any missing Form I-9s completed before it’s staring down the barrel of ICE’s gun. These audits, if properly handled, are viewed favorably by ICE and can greatly reduce your potential exposure. In fact, ICE has recently published guidance specifically designed to help you structure and implement these audits appropriately.

If you’re thinking about an internal audit, keep these key points in mind:

  • The individual conducting the audit needs to be thoroughly trained in Form I-9 procedures, but also independent from your regular Form I-9 verification process. Consider whether it would be best to use an in-house HR professional or an independent third party to conduct the audit. Don’t use anyone who’s involved with the routine completion of your Form I-9s and may be hesitant to address any deficiencies. And, because thorny, unanticipated issues can sometimes arise, it’s advisable for the auditor to have access to legal counsel.
  • You may audit your entire workforce or a representative sample. However, if you choose to audit the Form I-9s of some subset of your employees, be careful how you select the group to be audited. Choosing an audit pool based on citizenship status or ethnic background constitutes impermissible discrimination and must be avoided.
  • Make sure your employees are informed about the audit in advance. Explaining what you are doing, and why, before you get started can go a long way in reducing employee anxiety about the audit. A good way to alleviate your employees’ concerns is to make it clear that the audit is not government mandated, but part of your internal compliance efforts.
  • Initially, the auditor should develop a list of all current and former employees for whom the employer should have Form I-9s and compare that list to the employer’s original forms. The existing Form I-9s should then be reviewed for completeness and mistakes. If a current employee’s Form I-9 is missing—or is in such poor shape that it doesn’t actually show that the employee was verified—the employer should complete a new Form I-9. If an audit reveals that employees with temporary work authorization have not been timely re-verified, those employees should be re-verified immediately.
  • Form I-9s that are incomplete or contain mistakes may be corrected, but this should be done in a completely transparent manner. Employers should not backdate the forms or do anything—such as use white-out to correct mistakes—that might conceal the corrections. According to ICE’s published guidance, the best way to correct an error or omission on a Form I-9 is to (1) draw a line through the incorrect information, (2) enter the correct or omitted information, and (3) initial and date the corrected or omitted information. Employers are not allowed to make corrections to Section 1 of the Form I-9; if an error is discovered in that section, ask the employee to correct it.
  • Employers participating in E-Verify should understand that if an employee’s Form I-9 needs correcting – or is missing and must be completed – that does not mean that the employee should be E-Verified again. An employer’s Form I-9 obligations are separate from any obligations under the E-Verify program, and a current employee should be E-Verified only if the employer discovers that it inadvertently failed to E-Verify the employee in accordance with its E-Verify obligations.
  • Upon completion of the audit, the auditor should prepare a memorandum summarizing the entire process. In the event of an ICE investigation, this memorandum will provide valuable documentation of the employer’s proactive compliance efforts.

Given today’s immigration enforcement environment, it’s more important than ever for employers to satisfy their Form I-9 verification obligations. While an internal audit may not be a cure-all, it can help reinforce an employer’s compliance efforts and go far to reduce exposure in the event ICE comes calling.

Guess Who You Should Never Invite to Dinner? What We Can Learn From Sexual Harassment Claims in the News

Couple having coffeeSexual harassment—we have policies against it, we train people on how to prevent and report it, and yet still we have big news stories about it. In the last year, Fox News hit the headlines on this front multiple times–not only did the Chairman and CEO leave following a sexual harassment lawsuit, but now Bill O’Reilly is out in the wake of harassment allegations. Both men deny the allegations, and I have no opinion as to who is telling the truth. However, reading the various details that have come out compels me to opine about how people in power should behave at work.

A caveat: I am not here to comment on most of what is alleged against these two Fox News powerhouses. However, both cases included allegations that the person in power asked a subordinate employee to dinner, and it was perceived as a purely social invitation. Some might say what is the harm in asking a subordinate on a date? Dinner is only dinner, and we are both adults—he or she can say no. Therein could lie the problem and the point of this post.

A Quick Primer in Sexual Harassment Law

Under Title VII of the Civil Rights Act, sexual harassment is:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Basically, lawyers put harassment claims into one of two buckets: hostile work environment and quid pro quo. A hostile work environment may arise when a work environment has a lot of sexual comments, kidding, teasing, or worse. It can be created by anyone—boss, coworker, vendor, customer, etc.—although the cases in which the boss is the one making the sexually charged jokes or comments are harder to defend.

On the other hand, a quid pro quo claim (meaning “this for that”) typically involves someone with power requiring something of a sexual nature from a subordinate. The classic example was the casting couch—“sleep with me and I will give you the job.” What a lot of people forget is that just asking for the sexual favor (or perceived sexual favor) may be enough to support a quid pro quo claim. And what is a sexual favor? Asking someone to dinner? A single invitation may be okay, but several invitations or one invitation combined with other allegations of sexually suggestive comments or behavior may be grounds for a claim.

Here are two basic rules about social invitations to keep you out of the sexual harassment spotlight.

Rule #1: Don’t Date or Try to Date Your Subordinates.

You are the boss. When you ask your subordinate employee to a non-business related one-on-one dinner, he or she doesn’t view it as a purely social invitation—their job depends on it. You are the boss, and telling you “no” could have repercussions. You have all the power and this invitation can be viewed as an order.

Rule #2: If You Break Rule #1, It Rarely Ends Well.

The horse is out of the barn once you have asked your subordinate out on what may be perceived as a date. Let’s consider some scenarios.

Scenario A: Boss Jane asked Tom, her associate, to go to dinner. Tom either ignored the invitation or said no. No harm, no foul—right? Wrong. The next day Tom makes a mistake, and Jane chews him out for it. Jane has arguably just delivered on the implied threat that if Tom didn’t have dinner with her there would be consequences. It doesn’t matter how big a mistake Tom made, she is now potentially a defendant in a sexual harassment case.

Scenario B: Tom goes to dinner but just has dinner. He takes an Uber home with no goodbye kiss (even if Jane didn’t ask for one). Tom makes a mistake later, Jane chews him out—see Scenario A.

Scenario C: Tom accepts Jane’s invitation and thinks she is the best thing since sliced bread. He is very interested in pursuing a social/sexual relationship with Jane and so it begins. A month (or a year) later, Tom breaks it off. He makes a mistake (see Scenario A), or Jane is not as nice to him or as helpful to his career as when they were sleeping together (again, Scenario A).

So We Have to Be Robots Rather than Human Beings?

First, you can be a human being and not date your subordinates. Dating, or even attempting to date, subordinates is risky and bad HR, and your labor lawyers will tell you not to do it. Second, I am not saying that there is never a time when you and a subordinate can share a meal—even dinner. However, if you are the boss, you need to be careful both for your and the company’s sake. Some guidelines:

  • There is safety in numbers. Ask the subordinate to have dinner with you and your spouse. If the subordinate is married or has a significant other, invite both of them. If there is no spouse handy, include another colleague. Make clear that this is not a sexual overture.
  • Meet at the restaurant. Driving together to a restaurant smacks of a date and not a business relationship.
  • Lunches are safer and less likely to be misconstrued.
  • When you and a subordinate are traveling, if you can’t bring the client along, be sure to meet in the hotel lobby and not at someone’s room. Be careful about appearances, and keep it professional.
  • Have a business reason for why the dinner should occur. Dining with a subordinate without any actual connection to work can be problematic.

Whether or not your dinner invitation to a subordinate is entirely business related, you are the boss, you hold all the power in the relationship, and you are the potential target in a harassment claim. A sexual harassment claim is rarely filed only against the company—the alleged harasser is a separate defendant and could have personal liability. You need to be careful—make sure your subordinate does not misinterpret your intention, and protect yourself and your company.

And NYC Makes Three: Massachusetts, Philadelphia, and New York City Ban Salary Inquiries

New York CityNew York City will soon become the third jurisdiction to enact laws barring employers from asking a job applicant about former salaries. The goal? To eliminate one of the alleged sources of wage disparities between men and women in the workforce. NYC’s actions come on the heels of legislation in Massachusetts and Philadelphia.

The new bill, approved by the New York City Council, will amend the New York City Human Rights Law and make it illegal for an employer to inquire about the salary history of a prospective employee. The new bill will also make it illegal for an employer to base a potential employee’s salary on his or her salary history unless the potential employee volunteers the salary information. The new law will go into effect 180 days after it has been signed into law by the New York City Mayor, who has already expressed his support for the bill.

What You Can’t Do in NYC

Under the new law, an employer will be barred from:

  • Asking questions relating to a potential employee’s prior salary. Period. You can’t ask the applicant, the applicant’s current/former employer, or any current/former agent or employee of the former employer; and
  • Searching for former salary, benefits, or other compensation information through any publicly available source.

What You Can Still Do in NYC

Even under the new bill, a potential employer is allowed to:

  • Consider salary, benefits, and other compensation information if an applicant reveals this information voluntarily and without prompting; and
  • Discuss expectations regarding salary, benefits, or other compensation.

Penalties include a fine of up to $125,000 for an unintentional violation of the law and a fine of up to $250,000 for a “willful, wanton or malicious” violation. If a potential employee brings a civil lawsuit, then he or she will be eligible for back-pay, compensatory damages, and attorneys’ fees as well.

What to Do

Employers should start reviewing their policies and procedures now in order to eliminate any questions regarding salary history. Employers should also ensure that the human resources department and any employees who conduct interviews know not to raise the subject of an applicant’s current or former salary, benefits, or other compensation. You may want to train interviewers on what to do if an applicant volunteers prior salary information—to make sure that same applicant doesn’t later claim he or she was prompted to do so. Finally, you probably want to beef up your recordkeeping on why you didn’t hire someone so it is clearly not related to their prior salary or refusal to provide it.