Happy New Year! 2012 is going to be AMAZING! Thank you for your business, friendship, collegiality, and loyal support. I'm grateful beyond words!

Lead Your Industry By Preventing Slavery and Human Trafficking In the Supply Chain

On January 1, 2012, California’s Transparency in Supply Chains Act, (“SB 657”)
California Civil Code Section 1714.43(a) becomes effective.

This means that every “retail seller” and “manufacturer” “doing business” in California that has annual “gross receipts” in excess of $100 million (as of January 1, 2011) will need to:

1) To disclose to what extent, if any, it evaluates and addresses the risk of slavery and human trafficking in its products supply chain and whether a third party conducted the evaluation.

2) To disclose whether it audits its suppliers and whether the audits are independent and unannounced.

3) To disclose whether it requires its direct suppliers to certify that materials of the products comply with applicable laws on slavery and human trafficking.

4) To disclose whether it holds employees and suppliers accountable and if so, what the internal accountability standards are for employees or suppliers who fail to meet the standards.

5) To disclose whether it trains employees on mitigating the risk of slavery and human trafficking in the product supply chain.

The required disclosures must be posted on the company website with a conspicuous and easily understood link to the information on the homepage. (If the company does not have a website, a consumer must be provided the disclosures in writing within 30 days of requesting it.)

In the event that you might wonder how big an issue slavery and human trafficking is, here are some staggering statistics provided by CASTLA*:

· According to CIA estimates, as many as 15,000 to 17,500 men, women and children are trafficked into the United States every year.

· States such as California, Florida, New York, Nevada and Ohio are particularly vulnerable to human trafficking because of factors such as: proximity to international borders, number of ports and airports, significant immigrant population, and large economy that includes industries that attract forced labor.

· Los Angeles is one of the top three points of entry into this country for victims of slavery and trafficking. The diverse communities of this sprawling city make it easier to hide and move victims from place to place, making it very difficult for law enforcement to locate potential survivors.

· It is the fastest growing criminal enterprise in the 21st century – a nine billion dollar industry.

SB657 was enacted with the intent to inform consumers as to which companies are acting socially responsible so that consumers can choose not to patronize those that are not socially responsible, and to even the playing field for socially responsible companies that refuse to work with suppliers that use forced labor in competing against companies that have reduced costs because they do.

What is interesting about SB657, however, is what it does NOT do. It does NOT require anything beyond the disclosures set forth above. For example, a company can comply with the Act my stating that it has no policy regarding and does not monitor labor conditions involved in the production of its products or the materials incorporated in its products. It also does not have to actively ensure that its suppliers monitor labor conditions. Also, it does NOT apply to companies with annual gross receipts less than 100 million dollars. Last, it’s remedy for violating SB657 is an action by the State attorney general for injunctive relief. In other words, there is no financial penalty, which in itself undermines its “bite,” so to speak. (The Act does not limit remedies for other statutory violations that give private right of actions, injunctive relief, damages and attorneys fees.)

Despite these limitations, SB657 gives all companies that manufacture or sell products and their suppliers an opportunity to demonstrate leadership by going beyond the statutes disclosure requirements. Companies can “raise the bar” and act beyond the basic disclosure requirements of the statute. These “above and beyond” actions may include:

1) Raising awareness in the industry about slavery and human trafficking with press releases and PR campaigns that show their company's commitment to eradicating slavery and human trafficking.

2) Auditing the companies supply chain and ensuring that there are multiple avenues for employees to file grievances in the event that they are aware of unsafe work conditions, unfair labor practices and other conditions which give rise to human trafficking.

3) Training their suppliers about steps to take in preventing human trafficking and slavery in their countries and industries.

4) Refusing to do business with suppliers known for employing recruitment agencies that make the workers pay broker/agent/ recruitment fees or work visas.

5) Donating to nonprofits and organizations dedicated to eliminating human trafficking around the world.

Some online resources* on the topic include:

· Verite has a website, which is dedicated to stopping human trafficking and has many downloadable documents on topic.

· Apple has been transparent with its audit and report: It's audit was conducted a nongovernmental organization, Verite and the Fair Labor Association.

· The Human Rights Organization just put out a 2011 report.

Finally, companies that do not have to comply with the statute because they do not have receipts less than $100 million or do business in California can also take a stance against slavery and human trafficking thereby making them attractive as potential partners already in compliance to companies that are required to comply with it.

For companies that do not do business in California, note that on August 1, 2011 Rep. Carolyn Maloney (D-NY) introduced H.R. 2759, the Business Transparency on Trafficking and Slavery Act, a bill modeled after the California Transparency in Supply Chains Act. The bill would require companies to disclose efforts to identify and address the risks of human trafficking, forced labor, slavery, and the worst forms of child labor in their supply chains.

* I do not endorse or do business with any of these businesses or organizations.

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.

Green Light, Yellow Light, Red Light

How to Abide by NLRB’s Social Media “Traffic Signals”

Social Media use is altering the employment law landscape in many ways, but the most recent trend is emerging from the National Labor Relations Boards (NLRB’s) aggressive protection over an employee’s right (whether the employee is a member of a union or not) to use social media sites as a venue for “protected concerted activity” as it is defined by Section 7 of the National Labor Relations Act (NLRA).

On this topic, two beneficial documents have been published recently to assist employers in drafting their social media policies and in navigating social media disciplinary decisions so that the employer does not violate the employee’s rights in this arena.

• On August 5, 2011, the United States Chamber of Commerce issued a helpful “Survey of Social Media Issues Before The NLRB” (“the Survey.”) The Chamber had sent a Freedom of Information Act request to the NLRB and received 129 cases back. According to Michael Eastman, the Executive Director of Labor Law Policy at the US Chamber of Commerce, “the issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
  
  
• On August 18, 2011, the NLRB’s Office of the General Counsel released its own Memorandum that summarized the most recent social media cases issued by the NLRB (“the Memorandum”.) In the Memorandum, Associate General Counsel, Anne Purcell, states, "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media."
  

From the Survey and the Memorandum employers can gain insight, not only into how to narrowly draft their own social media policies so that it does not prohibit conduct that might be “protected concerted activity,” but also how and when to discipline employees who violate their internal policy. Since I have previously blogged about essential provisions of a social media policy and provided my own Sample Social Media Policy (which carves out for Section 7 protected concerted activity) this entry will focus on employer's disciplinary decisions when an employee acts in contradiction to the company's social media policy.

Proactive Lawsuit Prevention Strategies for Social Media Abuse Related Disciplinary Actions

Although the Survey and Memorandum do not explicitly set forth clear rules for employers to abide by, employers can infer “Traffic Signals” from these documents to obey when determining how and when to discipline employees for social media use that undermines the employer’s interests. The traffic signals for employers are:

Red Light.
STOP employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should not discipline or terminate the employee for this social media use. Red Light employee actions exist when

1) the employee is using social media to create a site or page or use a site or page where the stated purpose is to organize his or her coworkers to join together to protest working conditions or vote in a union.

2) the employee is using its own social media site or page to complain about wages, working conditions, or management and he or she is explicitly asking other employees for their opinions and support and/or other employees are giving their opinion and support about the working conditions at that company.

3) the employee is using social media to whistle-blow the employer’s illegal activity.

Yellow Light

SLOW DOWN employer. This is the instance when an employee is using social media in a way that may undermine or threaten the employer, but the employer should proceed with caution, and hopefully seek legal advice, before it makes a decision to discipline or terminate this employee for this social media use. Yellow Light employee actions exist when

1) the employee is “venting” about his/her own work, working conditions, wages or manager, but he/she is not seeking support from coworkers, yet other coworkers are commenting on it and/or “liking” the comment.

2) The employee is “griping” about work, working conditions and wages, in general, or management, but no one is commenting about it, although the employee’s friends or followers include his/her coworkers.

3) the employee is using social media to “out” the employer or managers for what the employee erroneously perceives as illegal or unethical activity.

4) the employee is name calling or bad-mouthing the company or its employees, but the comments are all true and not harassing or discriminatory

Green Light
INVESTIGATE, BUT DISCIPLINE ACCORDINGLY employer. Assuming the following activities are appropriately investigated and also prohibited by the company’s policies, if the employer determines that the employee is engaging in the following activities while using social media, the employer should discipline the employee for violating the company’s social media policy. Green Light employee actions exist when

1) the employee is posting violent threats, harassing and/or discriminatory comments about his coworkers, managers or customers and the comments unreasonably interfere with the targets ability to perform his/her job, especially when it is clear that these comments have nothing to do with working conditions.

2) the employee is posting comments that are so disloyal, reckless, or maliciously untrue about the company, and the company can prove the employee knew this when he/she posted it.

3) the employee is disclosing the company’s trade secrets and/or confidential information.

4) the employee is spending so much time on social media during work hours that it is interfering with the performance of his or her job (but remember to enforce this policy consistently.)

5) the employee is expressing a personal vendetta or gripe about his/her manager or coworkers, but it is not directed at coworkers and only his family and friends see it.

Remember, bad words or profanity are not determinative. It is about the motive behind the name-calling that the NLRB cares about. Also, how the company learned about the social media abuse will be taken into account. In other words, employers should not force employees into giving up their passwords to privacy protected groups or chatrooms. (See Pietrylo v. Hillstone Restaurant Group.) Also, do not pretend to be someone you are not to trick the employee into “friending” you or “accepting” you, especially if you are an attorney-investigator as this may be in violation of your code of professional conduct. Finally, using unlawful surveillance, interrogation or threats to get information about an employee’s social media postings violates California’s and other state statutes, which protect employees from this conduct.

Last, recognize that these “Traffic Signals” are merely my interpretation of the Survey and the Memorandum at this moment in time and the interpretation may change as the laws and rules surrounding social media use are in constant motion and continually change based on new cases and emerging law.

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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.

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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?

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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.
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