The EEOC’s fiscal year just ended and now it is releasing news of its successes. Although this is a look back, it gives us all insight as to what is important to the Commission and, perhaps, how we can stay off its radar. While the official report is being released today, here are some highlights.

Tis the Season: The EEOC’s Year-End Reports Are Out TodayMore Efficiency, Quicker Resolution?

The EEOC is working on being more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges of discrimination in the last fiscal year and, through its improved efficiencies, reduced its backlog to the lowest it has been in 10 years.

Another innovation is the new EEOC Public Portal that was just launched nationwide. This appears to be the flip side of the employers’ Respondent Portal that we have been using for the last few years. Employees can now find out how to file a charge, set up interviews with the EEOC and check the status of their charges all from the comfort of their homes.

More Money, More Lawsuits

As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local government. Of that amount, the vast majority ($355.6 million) was paid voluntarily — through mediation, conciliation and other administrative enforcement.

On the litigation front, the EEOC recovered $42.4 million through litigation last year. The EEOC also stepped up the number of lawsuits it filed. The commission filed 184 lawsuits, more than doubling the number from FY 2016. Of the 184 suits, about 67 percent were for individuals, while only 16 percent were systemic suits.

Training Resources

You can now have the EEOC Training Institute staff train your supervisors (Leading for Respect) and employees (Respect in the Workplace). I have a client who has had the EEOC come provide harassment training for the last several years, and it looks like the Commission is institutionalizing those efforts. As the program is new, I cannot tell you what it is like. However, it is certainly something to consider, particularly in the wake of recent harassment complaints.

Takeaways

First, the EEOC is clearly trying to reduce the amount of time a charge spends with the agency. We have all had charges that were pending for more than two years—which then means you could have to defend a lawsuit with a back-pay figure that is already out of control. Perhaps the improved efficiencies will make these stale charges a thing of the past.

Second, the EEOC wants to resolve the charges early and is having some success doing so. I always talk with clients about EEOC mediation—and it works with many (although not all) charges. I have also noticed that EEOC investigators try to encourage settlement discussions even when the parties have not agreed to mediate the charge. Although I was initially leery of having the purportedly neutral investigator orchestrate negotiations, for the most part I have found the investigators’ efforts to be helpful and have resolved some charges (usually low dollar) in that way.

Third, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals —not multiple plaintiffs or systemic issues. The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the Commission is willing to make that law one plaintiff at a time.

Finally, IMHO the best training involves your employment counsel. However, the EEOC’s training resources are worth considering. If you use these resources, it will be tough for the Commission (or a plaintiff’s lawyer) to argue that you don’t take prevention seriously.

Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a violation of her company’s social media policy. The company said that the image was “lewd” and “obscene.” The woman argued that she was not at work when the photo was taken and did not mention her employer in the post. No litigation or charges have been filed yet, but would they be successful?

Can an Employer Regulate Political Social Media Speech?

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

What comes to most people’s mind when reading this type of scenario is the First Amendment guarantee of free speech. However, the First Amendment protects against governmental censorship of speech. With some restrictions, a private employer can restrict speech in the workplace. This right to restrict also may be extended to social media speech, especially when the employer has a written social media policy and if the employee is using employer-provided equipment (cell phone or computer) to engage in the speech. Coupled with the fact that many states are “at-will” employment states, it may be perfectly acceptable for an employer to terminate an employee who engages in speech that the employer finds offensive or non-productive.

One complication outside of the First Amendment is the National Labor Relations Board’s recent decisions that employees cannot be restricted from commenting on social media about their conditions of employment. The NLRB considers such comments to be “concerted protected activity” for which an employer may not retaliate. However, as seen here, there may be social media posts that have nothing to do with the conditions of the workplace, but that the employer doesn’t like. For those posts, discipline or termination may be an option.

This story is a good prompt for employers to review their social media policies and to talk about them with their employees. Remind employees that, although they may not expressly identify each post with the place they work, they still may be considered the face of the organization. Political discussions are not per se taboo—but the tone and language used may sometimes stray into offensive territory. As always, an open dialogue about employment policies usually results in happier employees and less difficult situations.

Unless you have been living in a cave for the last month, you have heard about the sexual misconduct allegations against Hollywood mogul Harvey Weinstein. The story has all of the makings of a Hollywood blockbuster, except this time it’s not a movie. Here’s why it should also raise the curtain for employers outside of Tinseltown.

Why the Harvey Weinstein Scandal Should Scare the Pants Off EmployersRising Tide of Allegations Will Result in Increased Scrutiny

The Weinstein allegations have triggered an avalanche of claims against Hollywood stars, celebrity chefs, executives and politicians unlike anything in recent memory. The EEOC has weighed in with renewed interest in harassment claims, seizing upon an opportunity to publicize the issue. Those who use their workplace positions to make unwelcome sexual advances deserve to be called out for their misconduct. To be clear, this post is not for them. However, the sheer number of allegations regarding misconduct that occurred years ago and were never reported poses a real problem for conscientious employers. What does this mean for employers who face fallout for this kind of misconduct?

First, employers will have to deal with increased administrative interest. Undoubtedly, the EEOC will more carefully scrutinize claims of harassment and increase litigation efforts against companies alleged to harbor harassers, especially in the C-suite. Second, litigation could get tougher. Juries and courts may be more inclined to believe that alleged harassment occurred and to disbelieve denials by an accused executive and by extension his or her employer. In short, we will likely see an increase in claims, so what can employers do?

An Ounce of Prevention

You have heard it before but it bears repeating. While employers can’t stop employees from acting badly, they can take steps to try to prevent bad conduct and to properly address it when brought to their attention.

  • Review your policies. Any employer reading this almost certainly has a policy against harassment or discrimination, but far too often we see employers with cut and paste policies gleaned from another company or pulled off the internet that don’t really align with their workplace. You need clear, well-thought-out policies that your employees understand. Be sure the policy explains what harassment is and encourages people to report it.
  • Identify the right person to receive complaints. A policy merely advising employees to report harassment to their immediate supervisor, who has little or no training in how to identify or address harassment, often proves of limited help. Think about who is best to receive allegations about harassment and to properly address them and draft your policy to match. Clear policies with carefully crafted reporting procedures (perhaps supplemented with a third-party hotline option) can help.
  • Distribute the policy. A policy buried in a handbook, with no stand-alone employee acknowledgment, can be portrayed as mere words on the page with no real meaning. Worse still, employees may claim (sometimes truthfully) that they never received or read it. A policy given to employees and acknowledged in writing is critical.
  • Training, training, and more training. The again obvious, but often overlooked or sporadically implemented, additional step is education and training. For those of you in states that require annual training, make sure you do it and document it. For the rest of the country, have annual training of management in EEOC matters and trends. Add training of HR staff in how to identify, investigate and address allegations. Make sure your supervisors can identify harassment and know what to do when they see it or get a complaint. Educate employees in the company’s reporting procedures and make sure they understand that the company will not tolerate retaliation for a complaint. Finally, implement the training in a manner that avoids the holes created by employee and supervisory turnover.

Again, all of this sounds obvious but it can mean the difference between preventing harassment in your workplace and being found liable for the bad acts of people who you thought knew better.