I'm Perfect. Why Should I Change?

I’m Jewish. Shocking - a lawyer born Katz and married to a Pritikin, who knew? Being, Jewish, I have just come out of High Holiday services where I celebrated Rosh Hashanah, the Jewish New Year. One of the things we do on the New Year is reflect on the past year to determine what types of conduct or behavior we can improve upon for the next year. This is actually something that I feel is an important corporate lesson to pass on to the many Human Resource professionals who read my blog (thanks to all 7 of you.) It is also a good time of year, in September/October for this type of reflection, as opposed to January 1, the other New Year, because it is this final quarter when many of you are preparing your Proposals for Training to the budget committees or business group for approval. Keeping in mind that my business mission is to proactively prevent lawsuits, it is my opinion that two critical topics have been glossed over or absent from many companies training agendas: 1) Preventing Social Media Abuse and 2) Preventing Retaliation Lawsuits. I have blogged and taught on these topics in the past year a great deal in order to raise awareness to these two areas where I believe companies are increasingly vulnerable to related litigation yet corporations are doing the least to prevent them. Certainly, you may read my rationales for this bold assertion in my previous blogs on Social Media and Preventing Retaliation. In a nutshell, Social Media Abuse is the “smoking gun lawsuit” of the future and Retaliation lawsuits are the #1 claim being made in the nation.

Perhaps preventing lawsuits isn’t a good enough reason for you to change the stellar Training Budget or Proposal that you put together last year that you know will be approved if you only switch out 2011 for 2012. If that is what you have in mind, let me relay a humorous anecdote that the rabbi told during his service yesterday. He said a manager was upset that after 20 years of dedicated service to his company, he was passed over for promotion at his company. The promotion was given to another gentleman who had been with the company for only 5 years. When the 20-year veteran complained that he had more tenure and demanded to know why he was passed over, the HR professional responded that the young man was bringing more experience to the job. The veteran asked, “How can that be so?” The HR professional explained that the other man was bringing 5 years of experience to the role, while the veteran was merely bringing one year of experience that he had performed over and over again for 20 years. The morale of the story that the rabbi conveyed was that people need to continue to grow and learn, whether it be in life or their jobs. We need to continue to push ourselves each year to learn new skills and have new experiences, instead of repeating the status quo each year. I would add, that for HR professionals, the onus is on this department to ensure that all of your employees are given the opportunities for new growth through trainings on topics that are newly relevant and impactful, with follow up to ensure that the trainings are implemented or transferred down the line throughout the year.

In designing training proposals, keep this in mind. Ask, “What topics and skills do my managers want/ need to know about to help them “lead” employees best in next year?” One of the biggest gifts you can give managers is the peace of mind that they know the rules and laws so that they can manage their teams without the worry of being sued for their missteps. The two topics I think that are critical for 2012 are trainings that cover Preventing Retaliation Lawsuits and Social Media Abuse. Happy New Year.

Do You Know Where Your Glass Slipper Is?

Retaliation Prevention Policy Must-Have Provisions
I am looking forward to my upcoming NEW program for PIHRA's 2011 Annual Conference. It isn't too late to register. I am speaking on 2 topics: Social NOTworking and also Retaliation: Shoulda Put A Ring On It.

What I learned in researching the latter topic, is that Retaliation Prevention Policies have a Cinderella complex in most companies. The employers expect it to do all the work, by protecting it against retaliation claims, but they don't give it any glory. That means, that much like Cinderella's mean step mother expected her to keep things tidy, but didn't let her go to the ball, Retaliation Policies are usually buried deep inside a company's handbook, in two sentences at the end of the Harassment Prevention Policy. The company expects them to protect it from lawsuits, but doesn't highlight it as a stand alone policy, the way it should.

The fact is, now that Retaliation Lawsuits are the #1 Equal Employment Opportunity Commission claim, Cinderella need a new dress, new shoes and a white coach to take her to the ball. The bottom line is that Retaliation Prevention needs to take the center stage. In order for an employer to effectively prevent Retaliation claims and protect itself from Retaliation lawsuits, it needs a stand alone, detailed Retaliation Prevention Policy.

The Retaliation Prevention Policy should have the following iron-clad provisions:
1) It should make a stand alone commitment to a Retaliation-free workplace.
2) It should define Retaliation
3) It should give examples of Retaliatory conduct
4) It should set forth a complaint procedure
5) It should provide alternative means for making complaints
6) It should not promise confidentiality
7) It should set forth the consequences for retaliatory conduct

Here is my new Sample Retaliation Prevention Policy.* Hope to see you at the conference.

*This sample policy is not intended to be "ready for use." In addition, it is not to be construed as legal advice. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

Other blogs on topic: He's Just Not That Into You

He's Just Not That Into You

A New Twist On Workplace Romance After Thompson v. North American Stainless

Workplace romances have always been a breeding ground for employment lawsuits. Claims of sexual harassment, discrimination, favoritism and retaliation erupt from the aftermath of two “romantic souls” finding each other (and often losing each other) at work.

The recent United States Supreme Court ruling in Thompson v. North American Stainless, LP, (Jan. 24, 2011) added a new twist to the “workplace romance-begets-litigation” scenario. In Thompson, Eric Thompson and his fiancé, Miriam Regaldo, both worked for North American Stainless (NAS). In 2002, Regaldo filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified NAS of Regaldo's charge. Approximately three weeks later, NAS terminated her fiancé, Thompson. In his lawsuit, Thompson alleged that he was terminated in retaliation for his fiancé's EEOC charge, while NAS contended that performance-based reasons supported Thompson's termination.

The US Supreme Court ruled that NAS’s firing of Regaldo’s fiancé was a retaliatory act designed to punish her for filing the EEOC complaint and that Thompson – the fiancé who did not engage in any protected activity such as make the complaint or act as a witness in the investigation did have standing to sue for retaliation as a person in Regaldo’s “zone of interest.”

Refusing to define which third party relationships are defined as within the “zone of interest,” the Court referred back to an earlier decision it made in a retaliation case, Burlington N.S.F. R. Co. v. White and stated, “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

In leaving the door open as to which relationships are within an employee’s “zone of interest” the Court expanded the number of people with standing to sue for retaliation. Not only will this contribute to “retaliation cases” being the number one claim filed with the EEOC, as it was last year, but it has added new “language” to the workplace romance scenario. Now, if a person wants to know if their relationship is heading towards the altar, they can inquire whether their beloved considers him or herself within their “zone of interest.” If the answer is “No,” that’s a definite sign that he or she’s just “not that into you.”

Some Proactive Lawsuit Prevention Strategies that employers can implement to Prevent Retaliation Lawsuits are:

1) Draft and implement a No Retaliation Policy that is separate and apart from your harassment prevention policy. Most employers have a one or two sentence prohibition against retaliation in their other policies. This is no longer enough in light of the prevalence of retaliation claims.
2) Train your employees and managers on retaliation (again, not just an add on topic to their sexual harassment prevention training). Spend time explaining to them what types of behavior constitute potential retaliation, (including conduct that doesn’t detrimentally affect pay) and to be aware that third parties who have close relationships with a complainant and witnesses are now within the “zone of interest” for retaliation.
3) Review Anti-Fraternization Policies, if the company has them, to ensure that they are consistently enforced, but watch out for selective enforcement right after a complaint is filed.
4) Involve HR when disciplining complainants, witnesses and people within their zone of interest, especially when doing so right after the complaint is filed, or an investigation takes place.
5) During an investigation into the underlying claim, remind employees to come to HR if they feel that they are experiencing retaliation so that the company can investigate the retaliation claim and help protect the parties and witnesses in an investigation, as well as those individuals within their zone of interest.