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.

Straight from the SHRM Legislative & Employment Law Update 2011

Having just finished up two days of speaking at the SHRM Legislative & Employment Law Update in Washington DC, or as the Tweetups are calling it, #SHRMLEG11, I am blogging to express my deep gratitude and appreciation for the SHRM staff and volunteers, the kind press coverage from Michael VanDervort, the positive tweet commentary, the AMAZING audience attendance and the lively audience participation. I am especially grateful for those who stood throughout the long programs each day. I hope that I have another opportunity to participate with SHRM in the near future.

P.S. I taped a video interview for SHRM's website on INVESTIGATIONS, so stay tuned for the url/when that posts.

It's Business, Not Personal...Or Is It?

Courts Are Drawing Imaginary Lines In the Social Media Sand.
Cases that center on an employee's use of social media or email use are making a distinction between "business use" and "personal use" of technological devices and services in order to determine whether an employee has a "reasonable expectation of privacy" of their postings, blogs, or transmissions when the employer reads these messages. Consequently, the best Social Media policies are those that clearly set forth a company's ownership of its devices and that an employee does not have an expectation of privacy when using company equipment, devices, servers and services. Here is my Sample Social Media Policy

Perhaps, however, the real question is, whether or not, the case law is creating a false line in the sand when it tries to draw this business use versus personal use distinction for liability purposes. In the very near future, there will likely no longer be a distinction between business and personal use of social media. Let's define Social Media as communications online, including personal and professional websites, blogs, chat rooms and bulletin boards; social networks (Facebook, LinkedIn, Twitter and MySpace), video-sharing sites (YouTube) and e-mail.

Already, employees blur the distinction between business and personal use. They (a) work from home, (b) use their PDA's for business and personal calls, videos, emails and updates, (c) "friends" on Facebook are colleagues or customers and (d) YouTube has transitioned from a site that shows personal home videos to a strategic marketing tool for Company branding. The rules for using these sites, email, and technology should be clear, not based on who owns the servers, who owns the email account, or who owns the device used. Is there a reasonable expectation of privacy for social media use? Whether the answer is "yes" or "no" should not depend on whether the use is business or personal.

Two recent email cases highlight how difficult the courts have made it to determine "privacy" based on the business or personal distinction. In Holmes v. Petrovich Development Co. LLC, (1/13/11) _Cal.App.4th_, 2011 WL 17230, a California Appellate Court determined that an employee who sent an email to her attorney from her company's computer, did not have the protection of attorney-client privilege, let alone an expectation of privacy, when her employer read that email because the employer's policy stated that it would monitor and read transmissions. Compare this case to Stengert v. Loving Care 973 A. 2d 390 - NJ: Appellate Div. 2009 where a New Jersey court determined that the employee was entitled to her attorney client privilege when she sent her attorney an email through her password protected yahoo email, even though it was sent from the company provided laptop. These are two cases with very similar facts, trying to draw a line in the sand between use of business and personal servers and coming up with contrasting case law, as a result.

Shouldn't the rules be clear: Yes, there is an attorney client privilege for any types of communications between a client and her attorney? And, no, there is no expectation of privacy when using social media? Instead, the courts are once again falling behind the times, by trying to create rules for passe technology when in the future there will no longer be this business/personal distinction?

What do you think?

Other blogs on topic:
To Facebook or Not to Facebook
Elvis Has Left the Building

P.S. I'm looking forward to my upcoming program for SHRM Legislative & Employment Update, Social NOTworking. There is still time to register.

Speaking Engagement: PIHRA Legal Update 2011

Jan. 24th Ontario, January 25th Universal City, January 27th Garden Grove

I am sincerely looking forward to another opportunity to present for the members of PIHRA. In anticipation of my program, Lawsuit Proof Investigations, and with gratitude for the members who attend and participate in this program, here are some Sample Forms* for investigators.

Sample Sexual Harassment Complaint Form
Sample Investigation Questions for the Accused
Sample Investigation Suspension With Pay for the Accused
Sample Investigation Conclusion and Recommendations

You may also purchase a complete SEXUAL HARASSMENT INVESTIGATOR's KIT with all the forms (CD included) and the power point show of LAWSUIT PROOF INVESTIGATIONS. If you would like to purchase this click this button:

Please also send me an email: jodypritikin@proactivelawsuitprevention.com so that I know you have purchased this item through paypal.

If you attended the program, please take a moment to let me know if you found it informative and if these Sample Forms are helpful to you.
All the best, Jody

* The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. 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.
Previous blogs on topic:
Lawsuit Proof Investigations
To Facebook or Not to Facebook? That is the Question for Investigators
Another Reason to Shop at Costco

Happy 2011... or HOPpy 2011!

I'd love to wish all of my friends, colleagues and clients the most wonderful, healthy, happy and prosperous New Year! Enjoy this video of my kids celebrating life's adventures on the Frog Hopper and remember to be grateful for all of our blessings. I am grateful for your business, support and friendship. Happy New Year!

What Is Worse Than A Worm In Your Apple?

Getting You and Your Company Past the Past Lawsuit.

“What’s worse than finding a worm in your apple? Finding two worms in your apple.” I know, it’s not hilarious, but, if you are my five year old, it’s a real side-splitter. Besides, it’s a clean joke and it inspired my blog. Because… there is only one thing worse for a company’s morale, balance sheet and culture, then a lawsuit. Another lawsuit.

One of the most important Lawsuit Prevention Strategies that a company can implement after a lawsuit is to strategize about what steps it can take so that it will protect itself from being sued again. Is this a real threat? Absolutely. Plaintiffs’ lawyers that succeed in a lawsuit against a company for failing to properly pay overtime, for example, will come back time and again to sue the same company for additional wage and hour violations, such as failure to provide meal and rest periods. It’s easy money. They already have the pleadings written, the class identified, they just have to switch out the code violated and they are back in action. What many “target” companies fail to realize is that there are many Proactive Lawsuit Prevention Strategies that a company can implement to ensure that plaintiffs’ lawyers lose their number.

Announce Your Company’s Triumph. Immediately after a lawsuit, a company should meet with employees to announce the “triumphant” conclusion of the lawsuit. Whether the lawsuit ended in a successful verdict or a harsh liability, the company should set the tone of this meeting as a time to step into the future with optimism. This is a critical step to ensure that employees recognize that the time for “blaming,” financial insecurity, job instability and crisis are over. The tone for the future is a gleeful return to prosperity and positive change, thanking the employees who withstood the challenge of a lawsuit for their tenacity and deep loyalty. This prevents lawsuits because it demonstrates to your employees that their best bet is with you. The next time grievances are raised, the employees will look first to the company for resolution before seeking a lawyer or agreeing to join a class action.

Reflect for Accountability. Ensuring that ground rules are set to avoid the “Blame Game,” begin an honest and candid look into company policies, procedures and “unwritten rules” that allowed for the circumstances that gave rise to the lawsuit. If it is a safety violation, begin to determine how safety can become a priority – not just in words, but in practice. If it is a hostile work environment claim, consider retraining, or policy revisions, or investing in culture change programs that will help employees confront or speak up about hostile or harassing behavior before it becomes the next lawsuit.

Take Ownership for Unpredictable Externalities. Some lawsuits really are impossible to predict. Accidents do happen. Natural and man-made disasters occur. Companies that plan for unforeseeable events with insurance and preventative training are usually the ones that survive them. After a lawsuit is an excellent time to reevaluate insurance. Did your worker’s compensation insurance coverage help your company face this lawsuit? Was the carrier responsive and timely? Was the coverage enough? Was the appointed attorney up to the task? Were your interests served? Were there loop-holes or exigencies that you did not know about? Determining the right kind of insurance, the right amount, the right carrier, can help deter a plaintiff’s lawyer from future litigation, or at the very least, it can help cap the amount of liability your company might incur.

Change. Even if it is painful. Even if it is costly. Change after a lawsuit. Do not go on, business as usual. Or you will end up paying double. Punitive damages exist to “punish” the unrepentant employer. The best evidence of a lack of remorse is “business as usual.” Even if your company was victorious, or the lawsuit was frivolous, be prepared to demonstrate how your company used the challenge of the lawsuit to exceed company or industry standards of behavior. Keep records of the change, the associated costs and the leadership examples established as a result. The law prevents future litigants from using these changes against your company as proof of culpability; however, your company can use them to demonstrate compliance or leadership as of the date of the change.

Don’t Be Bitter. Move on. In the infamous words of Cher in Moonstruck, “Snap Out Of It!” Literally, move past the lawsuit by refusing to let it bring you and your company down. This includes refusing to bad mouth the plaintiffs, refusing to interfere in their ability to seek future employment, if they still work for you, refusing to target them for disciplinary action or termination, and refusing to be open and forthright in your behavior with current employees. Many managers, who have experienced the pain and embarrassment of a sexual harassment allegation or ethics violation, go back to work too bitter, too embarrassed or too fearful to comfortably interact with their subordinates. My advice, “Snap out of it!” Otherwise, risk becoming, at the very least, ineffectual. At the most, a target for future defamation, interference with future contract and wrongful termination claims. Those “burned” by lawsuits cannot prevent becoming future targets by isolating themselves from their coworkers. Instead, these individuals must share the wisdom of their battle with their colleagues, sometimes, humbly or publicly, and then step forward into the future using their talents to create a positive impact for their employers. The sexual harassment and/or assault allegations and associated litigation made against Mark Hurd, Bill Clinton, Kobe Bryant and David Letterman will, most likely be but a footnote in their biographies. (Maybe not for Bill Clinton.) Whether that is wrong or right, it reflects their ability to move past those allegations and use their talent to help themselves and their employers overcome the negative brunt of their respective lawsuits.

What steps have you or your company taken to get past the past lawsuit?

WEBINAR INVITATION: Unlawful Harassment Prevention (AB1825 PLUS)

		November 16, 2010 10:00am - 12:30pm (PDT) Jody Katz Pritikin, Esq. brings her unique style and energy to the very difficult topic of Unlawful Harassment Prevention. Not at all a “typical” lecture - this program will teach your managers and executives unlawful harassment law. This program goes beyond the minimum requirements for California’s sexual harassment prevention training requirements (as described in Assembly Bill 1825/Government Code section 12950.1) and will cover other forms of unlawful harassment prohibited by California's Fair Employment & Housing Act and Title VII. STAY COMPLIANT! AB1825 requires employers with 50 or more employees to provide at least two hours of "classroom or other effective interactive training" to all supervisory employees on the prevention of sexual harassment, discrimination and retaliation. Also, employees hired or promoted to supervisory positions must be trained within 6 months of hire or promotion to the position. This program will help you ensure that ALL of your employees are trained and no single employee undermines your compliance efforts. In this program attendees will learn: ● What is unlawful harassment ● What is sexual harassment ● What are managers and executives rights and responsibilities in the workplace ● What are managers, executives and company liabilities in the workplace ● How to prevent unlawful harassment in the workplace ● What to say and do when faced with an uncomfortable/ unlawful situation ● What procedures to follow when an employee complains or a manager sees it ● How to stop unlawful harassment before it even starts Your managers will love this entertaining program! Certificates are provided upon seminar completion. About your presenter: Jody Katz Pritikin, Esq. After working as an attorney in Los Angeles, Jody identified early in her legal career that almost all employment lawsuits are preventable. Recognizing that businesses need to prevent lawsuits, she founded Katz Consulting & Associates to teach business how to proactively plan for and consequently prevent lawsuits and save the considerable expense of litigation. With over thirteen years devoted to preventing lawsuits, her expertise lies in conducting investigations, teaching management, counseling HR and in designing policies to protect corporations from lawsuits. Jody Katz Pritikin, Esq. grew up in Southern CA and received her J.D. from USC Law. She is a member of the CA State Bar, the LA County Bar Association's Labor & Employment Group, the CA Org. for Workplace Investigators (CAOWI), SHRM and PIHRA. Her clients include small and mid-size companies as well as many Fortune 500s and 100s. She is an outsourced, neutral investigator used by her corporate clients and attorneys in highly sensitive investigations. She is a featured author/ blogger in trade publications and on the blogs of LACBA, ABA, Lawlink and PIHRA. More information about this presenter, other Lawsuit Prevention Strategies and upcoming Seminar/ Webinar topics are available at: http://www.proactivelawsuitprevention.com/. This program is currently being offered at a SPECIAL RATE of only $200.00 per attendee. Companies that want to register more than 10 employees can contact us for a reduced rate. Do not wait to register as space if limited. Click to reserve your spot. Note: Upon registering, you will automatically be directed to a page that allows you to pay by credit card. If you do not want to pay by credit card, please contact me directly (310) 930-9200. Once you have paid, you will still need to complete the second Registration Page to receive the confirmation email with information on how to join the webinar. System Requirements PC-based attendees Required: Windows® 7, Vista, XP or 2003 Server Macintosh®-based attendees Required: Mac OS® X 10.4.11 (Tiger®) or newer