Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Full Day Workshop on January 16: Start the new year on the right “employment law” foot! Click on HR4U 101 Workshop for more details. Now eligible for 8 hours of HRCI credit.

 

January 18, “Affordable Care Act Overview" sponsored by the Institute of Management Accountants

 

January 31, “How to Build a Hiring System for Consistent Performance” sponsored by Capstone Pacific Investment Strategies

 

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

 

Presrite Corp. to Pay $700,000 and Offer 40 Jobs to Settle EEOC Class Action Lawsuit

Presrite Corporation, a manufacturing company headquartered in Cleveland that makes gears and other industrial parts, will pay $700,000, offer jobs to no fewer than 40 women, and commit to other injunctive relief to settle a systemic class action lawsuit brought by the EEOC. 

 

The EEOC's lawsuit charged widespread discrimination against women who applied to work at one or more of Presrite's three plants in the Cleveland area.   According to the EEOC, Presrite – a federal contractor – consistently passed over female applicants in favor of less-qualified males for entry-level positions at all three plants.  The EEOC also cited evidence that women who were hired for such positions were harassed.  The agency pointed to testimony from a former Presrite employee who testified that her male-coworkers told her women should not be working there; called her a "dumb b—-h"; drew degrading pictures of her; and suggested that she open the top of her work uniform to pose for a photograph.  

 

The EEOC also charged the company with failing to keep applications and other employee data in violation of federal law.  The EEOC alleged that Presrite failed to produce more than a thousand employment applications for persons the company hired and failed to maintain accurate or complete data about applicants.  As a result, the EEOC said, it was unable to identify by name all of the female applicants who were unlawfully denied hire. 

 

Discriminating against applicants and employees based on sex violates Title VII of the Civil Rights Act of 1964.  Further, Title VII requires employers to make and preserve employment records relevant to determining whether the employer has engaged in unlawful practices, including hiring discrimination. 

 

Under the terms of the publicly filed consent decree, Presrite will pay $700,000 in compensatory damages to establish a class fund for women who sought certain positions at Presrite and were denied hire.  Over the course of the next three years, Presrite will also offer jobs to no fewer than 40 women identified by the EEOC during the claims process.  The decree compels Presrite to give those females priority consideration and to offer them jobs before any current applicants.  

 

The decree also requires Presrite to implement a number of measures designed to prevent future discrimination such as periodic reports to EEOC disclosing the number of females and males who applied as compared to those who were hired; mandatory training; and compulsory retention of applicant and employment records, including creating and producing electronic data.  The decree includes an injunction prohibiting Presrite from discriminating against women in the recruiting and hiring process and compelling the company to make all good-faith, reasonably necessary efforts to find female candidates to fill vacancies in laborer or operative positions.

 

The consent decree not only includes substantive monetary relief, but also compels the employer to hire a significant number of women.  Such a result not only compensates victims of discrimination, but also serves the public's interest in developing and maintaining a diversified work force.

 

Workplace Bullying: A Growing Problem

The media and political figures have paid increased attention to workplace bullying in recent months and years. Legislators in 21 states have introduced bills to address and combat workplace bullying, starting with California in 2003.   

 

Interestingly, none of the legislatures into which these bills have been introduced have passed the bills into law.  There are a variety of explanations for the fact that there has not been a change in the law despite workplace bullying becoming a hot button employment issue, but the most obvious explanation is this: it is difficult to define workplace bullying. 

 

The general definition of workplace bullying is a behavior in which an individual or group uses persistent, aggressive, or unreasonable behavior against a coworker or subordinate.  As with childhood bullying, we often think of workplace bullying as being marked by physical acts, such as assaulting a coworker or at least invading that coworker’s personal space in a threatening manner.   

 

But the phenomenon often takes on subtler forms.  For instance, a supervisor can act as a bully by manipulating work tasks, like giving a victim repetitive or irrelevant assignments as a means of control.  Supervisors can also act as bullies in the way that they provide feedback.  For instance, a supervising bully can choose to belittle an underling in a public setting so as to humiliate the subordinate, as opposed to delivering constructive criticism in a private setting. 

 

Because bullying comes in many different forms and is often understated, it is a challenge to create a proper legal definition for it.  Most notably, it is difficult to draw precise lines between assertive managers and bullying conduct.  Employers depend on their managers to evaluate the performance of the employees under their supervision and to provide feedback so those employees can learn from mistakes and improve.  How do we know when that vital evaluation process has crossed the border and become bullying behavior, especially when criticism by its nature entails negative statements?   

 

Two simple rules of thumb can aid in analyzing bullying situations, especially with respect to supervisor/employee relations: 

• Does the supervisor’s behavior go beyond our company’s norms for providing feedback or assigning work? 
• If the answer to the first question is yes, is this a persistent problem or simply one instance of poor judgment on the part of a supervisor? 

State legislatures might struggle to define workplace bullying, but the absence of specific anti-bullying laws should not deter employers from being wary to this phenomenon.  If left unchecked, bullying can create a host of workplace headaches, such as: 1) increased use of sick leave; 2) increased use of medication, such as anti-depressants, sleeping pills, and tranquilizers; 3) social withdrawal; 4) decreased productivity and motivation; 5) increases in the frequency and severity of behavior problems; 6) erratic behavior, such as frequent crying spells and increased sensitivity; 7) increased turnover and; 8) violent response by the person being bullied.

 

And the fact that there is no designated "law" for workplace bullying does not mean that the behavior cannot create lawsuits in other ways.  For instance, a bullying victim can bring a claim pursuant to Title VII for harassment or discrimination if the individual has a way to tie the activity to a protected characteristic, such as “my female boss degrades the men under her supervision.”  A bullying victim can also bring a claim against an employer for negligent hiring and retention on the theory that the employer knew about a supervisor’s bullying tendencies – either during the hiring process or thereafter – and did nothing. There are even implications under OSHA, which requires that employers complete a Workplace Violence Incident Report in any instance in which an employee commits a violent act against another employee. 

 

In light of the performance- and litigation-related reasons to combat workplace bullying, you should take steps now to handle this problem, if you have not already done so.  Every employer should have an anti-bullying policy that: 1) defines workplace violence and bullying behaviors; 2) provides a reporting procedure that identifies multiple managers to whom incidents or threats can be reported; and 3) encourages employees to report incidents, especially by assuring them that the employer will not tolerate retaliation against an individual who complains of bullying. This policy could be modeled after a company’s anti-harassment policy.  

 

That last point is especially important because bullying victims often feel powerless as a result of the power dynamic that the bully has fostered.  You should also train your managers on workplace bullying so they have a basic understanding of the warning signs and the potential impacts for not addressing bullying at the first possible instance.

 

Special Note: Effective 1/1/14 the new business use rate for mileage is $0.56 per mile.

 

Factoids

• 51% of Americans could not actually identify at least one of three common health insurance terms: Premium, Deductible, and Copay. 
• Even though 45% of organizations are willing and expect to negotiate initial job offer salaries, 49% of workers ending up accepting the first offer 
• 23% of knowledge workers at Fortune 1000 companies said they felt they were “misled” during the interview process.
• In 401(k) plans you have an average participation of 59% for voluntary enrollment and 80% for automatic enrollment.

Quotes

“Always proof-read carefully to see if you any words out.”
~Author Unknown~