Investigating Complaints of Harassment

bltcoverE. Jason Tremblay of Arnstein & Lehr LLP in Chicago put together an article in the ABA’s Business Law Today on how to limit a company’s exposure by Properly Investigating Complaints of Harassment. jason points out that an ineffective investigation can turn simple workplace humor into an expensive harrassment of retaliation complaint.

He inserts a word of caution that an investigation is not priveleged unless it is conducted through legal counsel. You need to take care that an investigation does not produce information that would be admissions adverse the company. Just gather facts.

Jason lays out these key steps that you can read in the articel in more detail:

  • Importance of training. Avoid the problems before they start.The better trained the company’s managers and supervisors are to identify personnel problems in the workplace, the more quickly and effectively the employer can take prompt and appropriate action to resolve the workplace conflict.
  • Start the investigation. Have a designated, impartial investigator instead of the employee’s manager.
  • Interview the alleged victim. When interviewing the alleged victim, there are a number of appropriate questions to ask in addition to the standard “who, what, when, where, and how” of the alleged harassment. Here are some examples of additional interview questions to ask the employee: How did you react? What response did you make when the incident occurred or afterwards? How did the harassment affect you? How has the harassment affected your job? Are there any persons with relevant information? Did the person who harassed you harass anyone else? Do you know whether anyone else complained about harassment by that person? Can you continue to work in your worksite?
  • Interview the alleged harrassser. It is prudent to give the alleged harasser an opportunity to respond to the allegations.
  • Interview other witnesses. What did you see or hear? When did the incident occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace. What did the complainant tell you? Has the conduct occurred in the past? Do you know of any other relevant information? Are there any other persons who have relevant information?
  • Take prompt, remedial action. Employres have an obligation to treat similar complaints of harassment in a similar fashion.
  • Document the investigation. Make sure your notes are accurate and are taken contemporaneously. Identify who drafted the notes and when. make sure they are legible. Confirm notes with the interviewees for accuracy.

New I-9

Starting February 2, 2009 there is a new I-9 (.pdf) for new employees.

What’s new?:

  • All documents presented during the verification process must be unexpired.
  • Two new documents have been added that establish both identity and employment authorization
  • Three documents were removed from the list of acceptable documents

The Department of Homeland Security U.S. Citizens and Immigration Services has published a Questions and Answers about the New I-9 (.pdf)
Thanks to Mark Spring of the California Labor & Employment Law Blog for pointing this out: New I-9 Form Effective Next Month.

Employer Notices to Employee Under the Family and Medical Leave Act

An employer must provide written notice to an employee each that an employee gives notice of the need for FMLA leave. The employer has to give the notice within a reasonable time after notice of the need for
leave is given by the employee (within one or two business days if feasible.) [See 29 CFR 825.301 (c)]

The employer has to provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The written notice must be provided to the employee in a language in which the employee is literate (see Sec. 825.300(c)).

Section 29 CFR.301(b) provides that the written notice must include, as appropriate:

  1. that the leave will be counted against the employee’s annual FMLA leave entitlement (see Sec. 825.208);
  2. any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so (see Sec. 825.305);
  3. the employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution;
  4. any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see Sec. 825.210), and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse);
  5. any requirement for the employee to present a fitness-for-duty certificate to be restored to employment (see Sec. 825.310);
  6. the employee’s status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial (see Sec. 825.218);
  7. the employee’s right to restoration to the same or an equivalent job upon return from leave (see Secs. 825.214 and 825.604); and,
  8. the employee’s potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave (see Sec. 825.213).

The notice may include other information–e.g., whether the employer will require periodic reports of the employee’s status and intent to return to work, but is not required to do so. A prototype notice is DOL Form WH-381 (.pdf).

Fact Sheet 28 for The Family and Medical Leave Act

In addition to putting up the new FMLA poster, covered employers must  give notices to employees about their rights under the Family and Medical Leave Act. Section 29 CFR 825.301 describes the required notices.

If you have written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding the FMLA.

If you company does not have handbooks or other written material, then you need to provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave. According to the Department of Labor FMLA website, delivering a copy of Fact Sheet No. 28 will fulfill this requirement.

Record Keeping Under the Family and Medical Leave Act

The Family and Medical Leave Act does impose some record-keeping requirements on employers. [See 29 CFR 825.500].

The law does not impose any particular form or order of the records. Employers umst keep the records for at least three years.

Covered employers who have eligible employees must maintain records that must disclose the following:

  1. Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
  2. Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA.
  3. If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
  4. Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees as required under FMLA and these regulations (see Sec. 825.301(b)). Copies may be maintained in employee personnel files.
  5. Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
  6. Premium payments of employee benefits.
  7. Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

New FMLA Poster

Under the Family and Medical Leave Act of 1993, covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA.  The poster at WH Publication 1420 is sufficient.

Under 29 CFR 825.300:

(a) Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, whether or not it has any “eligible” employees, a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. Employers may duplicate the text of the notice contained in Appendix C of this part (WH Publication 1420), or copies of the required notice may be obtained from local offices of the Wage and Hour Division. The poster and the text must be large enough to be easily read and contain fully legible text.

(b) An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $100 for each separate offense. Furthermore, an employer that fails to post the required notice cannot take any adverse action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave.

(c) Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall be responsible for providing the notice in a language in which the employees are literate.

The Electronic Communications Privacy Act

The Electronic Communications Privacy Act (Pub. L. 99-508, Oct. 21, 1986, 100 Stat. 1848, 18 U.S.C. § 2510) prohibits unauthorized “intercepts” of electronic communications, such as email.

In Fraser v. Nationwide Mutual Insurance Co., 135 F. Supp. 2d 623 (E.D. Pa. 2001)) an employee had sent the e-mail, the recipient at the competitor company had received it, and so the employer had not intercepted the e-mail while it was being sent, which is the only thing protected by the ECPA. On December 10, 2003, the Third Circuit Court of Appeals affirmed that part of the federal district court’s judgment (352 F.3d 107).

An important note here: an employer can do anything with e-mail messages sent and received on company computers, even including intercepting them during the process of transmitting or receiving, as long as it has notified employees that they have no expectation of privacy in the use of the company e-mail system, that all use of the e-mail system may be monitored at any time with or without notice, and that any and all messages sent, relayed, or received with the company’s e-mail system are the property of the company and may be subject to company review at any time.

Ten Ways to Turn Your Holiday Party Into A Lawsuit

Shanti Atkins of ELT published The Top 10 Ways to Turn your Holiday Party into a Lawsuit:

Number 10: Ask staff to work evenings or weekends arranging the party, but don’t pay them for the extra time because it’s not really “work.”

Number 9: Insist on calling it a “Christmas party.”

Number 8: Invite the purchasing officer for a big government contract your company is pursuing, and make sure to buy her a lavish, expensive gift.

Number 7: Open bar all night, with holiday colored jello shots.

Number 6: Lots of mistletoe.

Number 5: Pass around a microphone, and make everyone describe how they’ve been “naughty or nice” this past year.

Number 4: On the party invitation, summon “husbands and wives” to join you for an evening of holiday cheer.

Number 3: To make sure you get a great turn out, tell employees that anyone who doesn’t show up will have their pay docked 4 hours.

Number 2: Don’t provide alternative transportation home for inebriated party goers.

And our Number 1 way to turn your holiday party into a lawsuit? Announce to everyone that “what happens at the holiday party, stays at the holiday party.”

See Shanti’s post for some of the reasons these items made the list. There is also a podcast that accompanies the blog post: Top 10 Ways to Turn your Holiday Party Into a Lawsuit podcast

Comprehensive Changes to Family and Medical Leave Act Regulations

On November 17, 2008, the U.S. Department of Labor published final regulations under the Family and Medical Leave Act of 1993 (FMLA).  Morgan Lewis put together this great summary of the regulatory changes: Department of Labor Enacts Comprehensive Changes to Family and Medical Leave Act Regulations (.pdf)