"This & That" Tuesday: Sexual Misconduct, Whistleblower, Dress Codes

 

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.

Upcoming Talks

August 6, Sierra Madre, “The Big Seven Employment Trouble Spots” Click here for more information.

 

Teacher Fired Over Boyfriend’s Sex Crimes Awarded $3.5M

A New Jersey teacher won a $3.5 million jury award for being wrongly fired because her boyfriend was convicted of sex crimes.

 

Lyndsey Wilcox taught physical education and coached field hockey for the Newark Valley Central School district in 2008. Her boyfriend was Todd Broxmeyer, a private field hockey coach for teenage girls in New York, New Jersey and Pennsylvania. In 2009, he was convicted of sex abuse involving the girls he coached.

 

Around the same time, Wilcox was fired from her job for failing to report sexual misconduct by Broxmeyer. Wilcox sued the school district claiming she was wrongly fired because she did not know about her boyfriend’s misconduct. 

 

Wilcox claimed that the school wanted to get rid of her just because she was Broxmeyer’s girlfriend. The jury agreed and ordered the school district to pay her for lost past and future wages of $2.4 million and $1 million for mental anguish.

 

SEC Whistleblower Awarded Record $14 Million

The Securities and Exchange Commission (SEC) has announced that an unidentified whistleblower, “who voluntarily provided original information” to the SEC “that led to the successful enforcement” action against an undisclosed company, has been awarded a record $14 million. According to the SEC’s October 1 announcement, the award “recognizes the significance of the information that the Claimant provided to the Commission, the assistance the Claimant provided in the Commission action, and the law enforcement interest in deterring violations by granting awards.”

 

The bounty provisions authorize the SEC to award employee whistleblowers between 10 percent and 30 percent of monetary sanctions that exceed $1 million if the SEC determines that the whistleblower’s information was high-quality, based on original information, and led to a successful SEC enforcement action. As expected, the bounty provisions create a significant incentive for whistleblowers to supply information about potential securities law violations directly to the SEC.

 

The SEC’s DFA-required final rule, published in August 2011, defines a whistleblower as anyone who reports to the SEC information that relates to a possible violation of the federal securities laws (including any rules or regulations thereunder) that has occurred, is ongoing, or is about to occur. Anti-retaliation provisions under that fairly controversial final rule further permit disclosures by whistleblowers who report to persons or governmental authorities other than the SEC, despite explicit statutory language defining “whistleblower” as an individual who provides information “to the Commission.” Whistleblower identity under the DFA is protected from public disclosure. 

 

Employers should continue to evaluate and update their corporate internal reporting mechanisms or whistleblower “hotlines” and effectively manage internal reporting resources. While reporting to the SEC ultimately may be warranted in some situations, employers with strong reporting availability for employees will have the opportunity to be involved and to affect the course of events. To that end, some employers have created their own whistleblowing report reward system to encourage would-be whistleblowers to use internal systems rather than going to the government. Employees of organizations that deliver on their promises are less likely to resort to the SEC. 

 

Be sure your dress codes don’t violate the NLRA

If you are familiar with the NLRA, you know employees have the right to discuss their working conditions, even in ways that are less than flattering to the employer.  And you probably also know this right applies whether or not you have a union.  How broad is the right to engage in concerted, protected activity under the NLRA?  A case decided earlier this year gives us a sense.

 

An employee wore a shirt saying “slave” on it to work, accompanied by a picture of a ball and chain. He meant it to express his criticism of his employer.  The employer sent him home to change and docked his pay, relying on its dress code that forbade displaying “words or images derogatory to the Company.”  According to the administrative law judge who heard the case, the employee was undoubtedly engaged in protected activity.  Thus, he ordered the employer to pay lost wages and interest, and also to ditch its policy. 

 

This case was decided in the union context.  But don’t be fooled into thinking the NLRB would hesitate to pursue a similar case in a non-union environment.  The Board is still looking for ways to make itself relevant to the modern workplace. 

 

Factoids

• Millennials will make up 40% of the workforce by 2020
  
• 91% of them say they expect to stay at their jobs for fewer than 3 years
• 32% of college graduates say they never held a job related to their major 
• 73% of workers say they only at their job for the pay (salary.com) 
• Spending on employee training rose 15% to an average of $1169 per employee in 2013 (Deloitte)

 

Quotes

"If you are going to achieve excellence in big things, you develop the habit in little matters. Excellence is not an exception; it is a prevailing attitude….”

~Colin Powell~