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

 

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

 

GEO Group Pays $140,000 to Settle Sexual Harassment Suit Filed by EEOC and ACRD

The GEO Group, Inc., a prison management company, will pay a total of $140,000 to two women and furnish other relief to settle a sexual harassment lawsuit filed by the Arizona Civil Rights Division (ACRD) and the EEOC. In a successful collaboration between the EEOC and ACRD, the case was co-litigated by the two law enforcement civil rights agencies.  GEO is a large private corporation headquartered in Boca Raton, Fla., that runs over a hundred private prison facilities across the country.

 

The EEOC and ACRD alleged that GEO had an extreme tolerance for sexual harassment at a prison facility in Florence, Ariz.  More specifically, the EEOC and ACRD alleged that male managers at GEO sexually harassed numerous female employees and fostered an atmosphere of sexual intimidation and harassment.  The sexual harassment included serious verbal harassment and physical harassment of the female employees.  For example, the agencies contended that one supervisor grabbed a female subordinate, forced himself on top of her, and forcibly tried to kiss her.  They also alleged that another supervisor routinely made crude, obscene and suggestive sexual remarks.  The EEOC and ACRD said that comments like these were made by supervisors, were frequent and were often made in front of other management officials, who did nothing to stop the harassment.

 

In addition to the monetary relief of $140,000 for two harassment victims who remained in the case after the court's prior rulings and one separate settlement, the three-year consent decree settling the suit requires that GEO:

• review, revise, post and distribute its anti-discrimination policies and procedures; 
• provide training to all employees on gender discrimination and sexual harassment in the workplace; 
• arrange for all complaints of sexual harassment and/or retaliation at the Florence West facility to be investigated by GEO's Office of Professional Responsibility from its headquarters in Boca Raton or a designee; 
• establish procedures required for sexual harassment investigations; and 
• develop and implement a management evaluation system at Florence West that includes EEO compliance, compliance with policies and laws prohibiting retaliation, and compliance with the decree.

The decree also has an injunction against sexual harassment and retaliation, which includes notice posting and promises to not rehire two prior supervisors.

 

The lead counsel for the EEOC, said, "Employers should be on notice that merely having anti-harassment policies is not sufficient to avoid Title VII liability.  Employers must be committed to a workplace free of sexual harassment, a commitment that can be demonstrated by appropriate training, policies, and real enforcement of those policies."

 

NLRB Advice for Confidentiality of Workplace Investigations

In a well-publicized decision issued last year, Banner Health System, the National Labor Relations Board found that a policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with the employees’ Section 7 rights to engage in protected concerted activity and thus violated Section 8(a)(1) of the National Labor Relations Act. In the Board’s view, the policy interfered with the right of employees to communicate about workplace issues.

 

Now the Board has released an Advice Memorandum that provides some “approved” language for confidentiality policies, as well as other insights into the Board’s position. With rare exceptions, the current Board has aggressively moved to invalidate any workplace rules that “could” be read by employees to restrict any Section 7 protected concerted activity. Regional Offices of the Board investigating unfair labor practice charges are finding and challenging such rules on their own initiative, even when the charging party has not raised the issue. 

 

With respect to confidentiality rules applicable in employer investigations, the Board in Banner Health ruled that an employer must determine on a case-by-case basis whether employee-witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up. The Board found that the employer’s “blanket” approach of maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct violated the Act.

 

In the Advice Memorandum released, the NLRB’s Division of Advice provided sample language and some further clarification of the Board’s position.

 

(The Company) has a compelling interest in protecting the integrity of its investigations. In every investigation, (The Company) has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. (The Company) may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If (The Company) reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

 

The language suggested by the Division of Advice does not relieve an employer from making the case-by-case determination that Banner Health requires, but it does arguably permit an employer to tell employees in advance that “if” a determination of “confidentiality need” is made based on the Banner Health factors, the employees must follow the confidentiality rule.  It should be emphasized that the Board views the issue of confidentiality rules in investigations from a litigation perspective, and the employer must “meet a burden to demonstrate a business justification” for a rule that the employer thinks preserves the integrity of investigations. Given that perspective, employers would be prudent to document the specific justification for confidentiality in each instance in which a confidentiality rule is imposed.

 

Going forward; based on the authority of Banner Health and the Advice Memorandum, employers should feel relatively safe imposing confidentiality rules on a case-by-case basis when they have a demonstrable need to protect the integrity of the investigation.

 

Special Alert: Effective 2014 Flexible Spending Accounts (FSA) will drop the “use it or lose it” provision. You will be allowed to carry over $500 into the next plan year. This amount doesn’t reduce the $2,500 maximum you are allowed to contribute each plan year.

 

Factoids

Order of hardest jobs to fill

2012:                                                   2013:

Skilled Trades                                     Skilled trades

Engineers                                           Sales Representatives

IT staff                                                 Drivers

Sales Representatives                        IT Staff

 

Confidential Information

• 50% of employees took confidential information with them when they left their job
• 40% plan to use the information in their next job
• 60% say a coworker hired from a competing company has offered them confidential information

Quotes

“Two thirds of Americans can't do fractions. The other half, just don't care.”
~Author Unknown~