MMC, INC. E-Newsletter Volume V, Issue No. 2

February 2009 

Moving Forward And Beyond The Economic Downturn

We at MMC know and appreciate the efforts required by business owners to motivate employees, clients, vendors, and all involved to forge ahead and positively into 2009. The articles assembled in this edition of our Client E-Newsletter are intended to reinforce the strength, optimism, and courage that must be demonstrated by organizational leadership as U.S. businesses move beyond the challenges of the economic downturn and set new organizational goals for the new year.

We are always here to lend guidance to all whether an existing, valued member of our MMC client-family or a curious prospective client. We stand by our advice and offer only constructive workplace consultations from the most experienced and nicest human resources, payroll and benefit professionals, as well as risk management experts around. On behalf of everyone at MMC, we wish all an industrious February. 

In this issue

• Managing Workplace Romances: Tips For Employers
• Federal legislation in 2009:  “A New Era of Responsibility”
• Staff Reductions (Part 3): What Happens When The Ship Is Righted?
• Labor & Employment Law Updates: CA Hospital Required To Defend Negligent Hiring Claims

Managing Workplace Romances: Tips For Employers

Written by: Crystal M. O'Brien, Esq. 

For many employers, Valentine’s Day holds a certain, peculiar anxiety.  Questions of whether the day can be productive at all are inherent to a day that is filled with looming expectations of flower deliveries (or the lack thereof), candy and singing telegrams, office parties, the longer-than-usual lunch hour, unplanned sick days, requests to leave work early, and general disappointment of those employees who can be described as “romance challenged”. 

Some employers may even be faced with more complex workplace challenges.  That is, the duty to manage office romances which are highlighted by Valentine’s Day festivities and/or the unwelcome romantic gestures and advances of one employee to another. While workplace romances are not necessarily a Valentine’s Day problem, the problems inherent to the same can be highlighted on this day.  So in honor of Cupid’s holiday, we’ve highlighted a few facts which should serve as a refresher for what you may find yourself considering on Valentine’s Day.

Generally, “unlawful harassment” resulting in a hostile work environment means that an employee has been (1) subjected to intentional and unwelcome conduct of a sex-based or sexually motivated nature; (2) a reasonable person standing in the employee’s shoes would have also found the conduct complained of to be sufficiently severe or pervasive to alter the conditions of the person's employment and to create a hostile or abusive working environment; (3) the employee complaining of the conduct found the harassing conduct sufficiently severe or pervasive to alter the conditions of his/her employment; and (4) the conduct complained of has resulted in adverse employment action or damages. Valentine’s Day may provide some “harassers” with perceived free license to initiate or rev up an ongoing campaign to send unwelcome electronic communications, make sexual advances, or accelerate conduct that can be viewed as demeaning and inappropriate to another.

Employers are encouraged to implement or consider existing policies on the following.

1. Anti-Harassment Policies.  Having policies that spell out in clear and concise terms that an organization has a “zero tolerance” for any harassment, whether it is sexual in nature or motivated by ethnicity, gender, age, or creed, is an excellent effort to promote equality and respect in the workplace.
2. Open Door Policies.  Encouraging employees to report any concerns that suggest their rights or those of another are being treaded upon by implementing an “Open Door” policy that enables complaints to be reported to any member of management who an employee feels comfortable with does a progressive organization well.  
3. Non-Fraternization Policies.  Flirting and dating in the workplace happens.  And with flirting and dating comes the very real possibility that the road to “happily ever after” may not be realized.  For this reason, many employers discourage workplace dating--- especially among supervisors and subordinates.  When these policies are actually penned, it makes clear to all what the organization’s stance is on dating. Alternatively, some workplaces find that presenting employees who have become romantically linked with one another with a “Love Contract” which requires each party to acknowledge the consensual nature of their relationship and assume the risks of the same by signing the agreement. (Click here to see a Sample Love Contract.) 
4. Electronic Communication Policies.  If you haven’t already, create an Electronics Communication policy which notifies employees computers, handhelds, cell phones, and laptops provided for work purposes are not to be used to communicate offensive, lewd, and other comments of a sexual or otherwise “off-color” nature.  Employees should be assured that violations of this policy will lead to discipline, including up to termination. 
5. Alcohol/Drug Policies. Make sure your alcohol and drug policies put employees on notice that abusing at lunch or at work-sponsored events, as well as at any other time during the workday will result in disciplinary action.  This effort should prevent the lunch hour or office party “lapses in judgment”.
6. Violence & Horse Play Policies.  Finally, all employees should be aware that violence, or the threat thereof, is prohibited and will lead to harsh disciplinary action, including and up to termination and possibly criminal prosecution.  Moreover, horse play should be equally discouraged and targeted for disciplinary action to avoid “mock” physical confrontations.

Federal Law Changes:  “A New Era of Responsibility”

Written by: Selena Rojhani Dallal, Esq.

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act (“FPA”) which amends Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 to exend the time that employees have to file a lawsuit based on compensation disparaties motivated by unlawful discrimination.  The FPA makes it an actionable claim every time an employer issues a payroll check which reflects unlawful pay disparaties against a claimant/employee.  The FPA in effect reverses a 2008 U.S. Supreme Court decision (Ledbetter v. Goodyear Tire & Rubber Co.) which limited the statute of limitations Lilly Ledbetter could seek damages for essentially a career of not receiving adequate pay when compared to her male counterparts.  To read more, click here. 

Proposed Federal Legislation: Union, Anyone? 

The proposed Employee Free Choice Act (EFCA) and Re-Employment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act are supported by President Obama’s Administration and are expected to soon become enacted, in some form.  EFCA as is stands now would fundamentally change three aspects of the National Labor Relations Act (NLRA).  First, there would be an elimination of secret ballot elections, in favor of a “check card”.  Some of the objections (pro-employee and pro-management) are that some employees may be unduly pressured into signing check cards and unknowingly give away their rights to free speech as an individual employee if a majority of employees sign the cards and authorize organized labor.  Second, and if a majority of employees elect to have union representation, employees and management must come to an agreement as to what the terms and conditions of the collective bargaining agreement will be within 130 days.  Otherwise, an arbitrator from the National Labor Relations Board will have authority to establish a collective bargaining agreement that will bind all parties for two years.  Last and certainly not least, there will be substantially increased penalties on employers and added remedial relief for employees for any alleged violations of fair labor practices as defined by the collective bargaining agreements. 

As for the proposed RESPECT Act, it would work in conjunction with the EFCA to redefine (and some say “narrow”) the scope of employees who are considered “supervisors” under the NRLA.  This is key because only non-supervisory employees can organize as a union.  Thus by limiting the definition of who is a “supervisor”, the number of potential employees eligible for union representation is expanded. 

On a practical level, retail employers who do $500,000 in annual sales and those businesses who conduct business with receipts of $50,000 or more across state lines should carefully analyze and involve employees with the pros and cons of union organization.  Moreover, employers should promote “open door” communication policies that allow individual employees to have a voice and be heard regarding workplace practices.  The need to rely on a union representative to speak on behalf of employees is not necessarily critical when employees enjoy a fair workplace that values individual contributions and talents. 

Even Longer Lines At The Courthouse?

Also slated to soon pass Congress’s muster are the Class Action Fairness Act, which would promote class representation for the enforcement of fair workplace practices, the Arbitration Fairness Act, which bars employers from arbitrating employment, consumer and franchise disputes, and the Healthy Families Act which would mandate that employers with 15 or more employees provide paid six leave benefits.  Finally, the Employment Non-Discrimination Act would amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation.  This Act would make it a nationwide unlawful employment practice for employers to discriminate against applicants and employees on the basis of perceived or actual sexual orientation.  Currently, Title VII provides federal protections for those discriminated in the workplace on the basis of sex and gender and amendments would respond to the rising wave of cases which demonstrate a need to also protect employees on the basis of sexual orientation.

Staff Reductions (Part 3): What Happens When The Ship Is Righted?

Written by: Michele O'Donnell, M.S. Human Resources Management

In this final installment of our Reduction in Force (“RIF”) articles, we focus on what happens afterwards.  One of the first items to deal with is managing the inevitable fall-out from the RIF. No matter how well planned or how economically justifiable, a RIF will emotionally jar remaining employees.  According to a recent study in the Academy of Management Journal, even modest downsizings in a company trigger an upturn in job seeking efforts by sometimes the most valued employees. Employees who survive a RIF must be assured that the reduction was undertaken to secure key job posts and stabilize business. 

One of the current challenges for corporate leaders, globally, is employee retention.  Not only do employers need to do everything possible to keep their existing workforce in place but for those with job vacancies that require filling, recruiting and retaining top talent is a challenge in light of the numerous job seekers competing for limited coveted positions.

A survey conducted by SHRM and Careerjournal.com highlighted that the top three reasons employees search for new jobs include (53%) better compensation and benefits, (35%) dissatisfaction with potential career development, and (32%) ready for a new experience.  These interesting studies also indicate that the top three reasons employers are able to successfully retain talent include tuition reimbursement, vacation/holiday benefits, and competitive salaries.

Finally, as noted human resources expert Susan M. Heathfield offers, the following “Golden Rules” should be considered in your efforts to successfully retain talent:

• Select the right people through behavior-based testing and competency screening.
• Offer attractive, competitive, benefits packages.
• Provide opportunities for people to share their knowledge via training sessions, presentations, mentoring others and team assignments.
• Demonstrate respect for employees at all times. Listen deeply, use employee suggestions, and never ridicule or shame employees for offering new ideas.
• Offer performance feedback and praise good efforts and results.
• Make work fun. Engage and employ the special talents of each individual.
• Enable employees to balance work and life. Allow flexible starting times, core business hours and flexible ending times.
• Recognize excellent performance, and especially, link pay to performance.
• Base the upside of bonus potential on the success of both the employee and the company and make it limitless within company parameters.
• Nurture and celebrate organizational traditions (e.g., Halloween costume parties,   Fall food drives, monthly charity events, and annual company dinner, etc.)
• Cross-train and offer career progression through education and challenging assignments. People like to know that they have room for career movement.
• And encourage employees to have good--- even best--- friends, at work.
  

Labor & Employment Law Updates: CA Hospital Required To Defend Negligent Hiring Claims

Written by: Crystal M. O'Brien, Esq. 

In C.R. v. Tenet Healthcare Corp. ((Jan. 5, 2009) (__ Cal.App. __)), female patients and employees brought claims for negligent hiring, negligent retention and tort liability for sexual harassment, among other claims against Tenet Healthcare.  In short, the plaintiffs alleged that defendants failed to conduct a background check, hired a known harasser and molester, failed to manage workplace sexual harassment claims and patient complaints against the male Certified Nursing Assistant (“CNA”), and generally showed a lack of concern.  Plaintiffs argue that had Tenet conducted a background check, the hospital would have learned the CNA had a history of similar complaints from former employers, coworkers, and patients.  The hospital’s alleged efforts to ignore complaints, diminish the seriousness, and/or destroyed documentation and discouraged and ignored the same once presented with reports of misconduct.

In the hospital’s defense, it argued that the claims were procedurally defective and based on pleading and procedural defects, the trial court sustained a demurrer, which essentially dismissed plaintiff’s claims.  Under appeal, the reviewing court reversed the trial court’s decision citing plaintiffs raised valid claims that fell within public policy efforts to protect patients and those with professional relationships from unlawful harassment that could have been prevented through hiring and retention best practices. 

The message to employers and providers of services available to the public, spend time knowing who you hire, supervise your employs, and address legitimate concerns raised about those employs when brought to your attention. To read this case in full, click here.

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