I was supposed to be in New York City today being interviewing for tonight’s episode of 20/20. I would have discussed the workplace implications of Wednesday’s murder of two Virginia journalists by their former co-worker. While I was on my way to the airport yesterday, I received a phone call letting me know that direction of the show changed, and that my segment was bumped. Thank you to the nice people at ABC News who reached out to me. I’ll catch you next time.
Here’s the rest of what I read this week:
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
While the outcome isn’t necessarily a surprise, the decision nonetheless will be a shock to business’ systems. In a landmark 3-2 decision—Browning-Ferris Industries of California [pdf]—the NLRB has re-written its joint-employer standard.
The common-law definition of an employment relationship establishes the outer limits of a permissible joint-employer standard under the Act. But the Board’s current joint-employer standard is significantly narrower than the common law would permit. The result is that employees covered by the Act may be deprived of their statutory right to bargain effectively over wages, hours, and working conditions, solely because they work pursuant to an arrangement involving two or more employing firms, rather than one. Such an outcome seems clearly at odds with the policies of the Act….
The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them….
The Board justifies this expansion of the joint-employer standard by stating that it is good for business and for the hiring of employees:
As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded. The procurement of employees through staffing and subcontracting arrangements, or contingent employment, has increased steadily…
NLRB, you are not being honest with us. There is nothing good for businesses about this decision. If staffing agencies and franchisors are now equal under the National Labor Relations Act with their customers and franchisees, then we will see the end of staffing agencies and franchises as viable business models. Moreover, do not think for a second that this expansion of joint-employer liability will stop at the NLRB. The Department of Labor recently announced that it is exploring a similar expansion of liability for OSHA violations. And the EEOC is similarly exploring the issue for discrimination liability. I think that Browning-Ferris is a jumping-off point, not an end-point, on this key issue. Stay tuned.
HBO’s last week with John Oliver is fast becoming my favorite “news” show on television. This past week, John took on the issue of LGBT discrimination
. In a blistering 14:45, he summed up what I’ve been preaching for years
—the time is long past due that it becomes the law of this nation that LGBT discrimination in employment and elsewhere is illegal and cannot be tolerated in a civilized and free society.
Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.
Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies alleged of retaliation.
Earlier this year, OSHA published a memorandum entitled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”
What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.
If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.
As OSHA’s summarizes:
Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….
Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.
To be actionable, the offensiveness of alleged harassment needs to be either pervasive (that is, happening often) or severe (that is, shocking to the system even if observed only once). In Macias v. Southwest Cheese Co. (10th Cir. 8/24/15) [pdf], a federal appellate discussed the difference in the context of a male employee who exposed himself to a female co-worker.
As to the second element concerning the severity or pervasiveness of the conduct, the district court concluded that the … conduct … was neither severe nor pervasive enough because it transpired over twenty months…. His conduct was more than a mere offensive utterance; it was not only physically threatening and humiliating—if true, it was also criminal, see N.M. Stat. Ann. § 30-9-14. The environment was objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that Mr. Stewart might expose himself to her again or assault her in some way.
Thus, suffice it to say that if an employee exposes himself at work, you have a sexual harassment problem on your hands.
The bigger question from this case, however, isn’t whether actionable sexual harassment occurred, but why this employee kept his job after HR learned about the exposure. Employers, here is your take-away from today’s post. When an employee pulls out his little friend at work, do not hesitate to pull the termination trigger (once you investigate and reasonably confirm that that incident happened). I promise you that the risk from that termination will be far less than the risk from one or more of his co-workers suing you for sexual harassment.