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

Social NOTworking PIHRA District Meetings

I am looking forward to presenting Social NOTworking to PIHRA Districts 19,12 & 1 in the next few weeks. In anticipation, here is my Sample Social Media Policy* and a link to a great article by CNN Money showing examples of Social Media abuse, entitled "6 All Time Favorite Social Media Screw Ups." If you plan on attending the meetings, you can anticipate learning the Proactive Lawsuit Prevention Strategies to implement to prevent "screw ups" from happening at your company? I'll give you a hint. "Choo Choo The Train Stops Here." See you soon.

Related Posts: It's Business Not Personal, To Facebook Or Not To Facebook, Elvis Has Left the Building

* 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.

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!