When will they learn?

I have been doing this a long time. Every once in a while, in a moment of idealism,I start to believe that maybe, just maybe, every employer in the country is starting to get a clue when it comes to issues of sexual harassment. Then I read an article like this one posted at Firehouse.com entitled "New Mexico Firefighter: Station was Like a Sex Brothel" (click here to read article).  Perhaps what is most disconcerting about this article is that the victim's supervisors acknowledged they "heard rumors about porn and alleged sexual harassment" of the victim but took no action.  Let me be clear on this. I know it sounds like a no-brainer, but where there is smoke there is usually fire.(pun intended) One would think that management would at least question the alleged victim about these rumors rather than waiting for her to report and hire a lawyer.  

Let's just give some thought to what could have occurred if the employer took the time to ask the alleged victim about rumors that came to their attention.

The victim could have confirmed that she was being sexually harassed. In that case the employer would have conducted an investigation and learned all the facts.  By being proactive the employer could have, through its action, confirmed to the alleged victim that it took matters of harassment and discrimination seriously and, quite possibly, avoided lawyer involvement and a lawsuit.  An early investigation may also have led to the discovery of defenses to her claim and, in a worst case scenario, allowed the employer to minimize its financial exposure and negative publicity.  

What if the employer contacted the alleged victim and she denied being sexually harassed?  Well, hopefully the human resources representative would have kept a record of the discussion and provided the alleged victim with a copy of their harassment and discrimination policy, as well as, their reporting policy.  Then if a claim arose at a later date, the following may have happened  in the context of a deposition:

Attorney:  You were contacted by Mr. X, the human resources representative, on January 14, 2006, is that right?

Alleged Victim: Yes.

Attorney: At that time the HR person told you that there was a concern that you may have been the victim of sexual harassment or inappropriate conduct, is that right?

Alleged Victim: Yes

Attorney: In response you told the HR person that you were not being sexually harassed, is that right?

Alleged Victim: Yes.

Attorney: You also told him that you were not exposed to any conduct in the workplace that was inappropriate, isn't that correct?

Alleged Victim: Yes.

Attorney:  At the conclusion of the meeting you were provided copies of the company harassment and discrimination policy and the policy on reporting harassment and discrimination, right?

Alleged Victim: Yes

Attorney: You signed this receipt acknowledging that these policies were given to you?

Alleged Victim: Yes.

Attorney: You were also told that you could always contact the HR representative, or anyone, in the HR office, if you felt you were the victim of sexual harassment, right?

Alleged Victim: I don't remember....maybe.

Attorney: So if the HR representative were to testify he was always available if you wanted to talk, you would not disagree with that.

Alleged Victim: I guess not.

Okay, before I get emails from cynics,  let's take that question head on. What if the person denied being contacted by the HR person? Well, you still have the HR person's testimony, their contemporaneous record of the interview and the document acknowledging receipt of company policies. That still puts the company in a better position than it would be if it ignored the problem.

I just have one question for employers like this fire department.  To quote Dr. Phil, "How's that workin' for ya'?"

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. In the event you have a legal concern, you should immediately contact an employment law attorney for an evaluation of your claim and for legal advice tailored to the facts of your case.

Facebook comment leads to settlement

Although I don’t make it a habit of discussing cases that don’t involve claims under state or federal law, I came across an article while reading a London newspaper. The case was of interest because it seemed to be the perfect storm of what not to do.  

Sarah Whitefoot, a model and former television personality, was hired to manage an upscale beauty salon that catered to the wives of wealthy footballers(soccer players). As soon as Sarah, started her job she began to see the signs of trouble. Her boss and owner:

 1. Repeatedly invited her out for drinks via text message;
 2. Bought her a glass sex toy to celebrate her first week on the job; 
 3. Constantly referred to her as “babe” and included kissing symbols in text messages;
 4. Told her in one of her text messages, “If u look after me I’ll look after u”;
 5. Took a mobile phone picture of her and sent it to his friends with the message, “Fancy a full massage?”; and
 6. Described her on his Facebook site as a “nympho.”

Ms. Whitefoot, understandably, was upset by her bosses conduct and showed the text messages to his fiance, who, in turn, dumped him. The boss then fired Sarah by text message.

Sarah sued her boss and settled out of court for a sum in excess of “$10,000 pounds”( about $18,600.)

The Bottom Line:

This case not only sounds like a hostile work environment sexual harassment claim, but also sounds like a quid pro quo claim (“If u look after me I’ll look after u”). Since I don’t know the first thing about the laws in the UK, I will not comment of the settlement amount, other than to say, in Washington, this case could have easily resulted in a six figure settlement.

 Text messaging and social networking sites are becoming increasingly problematic for employers and employees. Employees should be reminded through periodic training and through your handbook that text messaging should be limited to business related communication. In addition, your company should have a blogging and social networking site policy that is disseminated to your entire workforce.  

Think of ways to educate your workforce. While we are all familiar with training and handbooks, think outside the box. Consider having your HR department sending out a broadcast email once a month that highlights one handbook policy and explains what is meant by that policy. My preference is to require the employee to acknowledge receipt of the email for record-keeping purposes. Another approach is to have your HR department, perhaps with the help of your legal counsel, highlight a court decision in your company newsletter. Discuss how your company handles claims of that nature, what policies are involved, and the resources available to employees internally.  

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. If you have an employment law problem, please seek the advice of an experienced employment law attorney that can tailor their advice to your legal circumstance. 

7th Circuit: Joint Employer Doctrine in context of the FMLA

Employer's that employ 50 or more employees in a 75 mile radius ( as the car drives not as the crow flies) must comply with the Family Medical Leave Act (FMLA).  In enacting the FMLA, Congress understood that small employers are always able to shoulder the financial burdens imposed by FMLA compliance. Congress charged the Department of Labor (DOL) to create regulations that assure the purposes behind the FMLA are carried out. One of many regulations promulgated by the DOL is the joint employer doctrine. The joint employer doctrine allows an employee add the employees of two or more employers to achieve the 50 person threshold required for FMLA compliance. According to the DOL, a joint employment relationship may exist where 

(a) Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an employee’s services or to
interchange employees;
(2) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

Denise Moldenhauer's Claim:

Denise Moldenhauer worked for the Tazewell-Pekin Consolidated Communications Center as a dispatcher. She missed a considerable amount of time from work due to chronic pancreatitis. Eventually, she was terminated. After she was terminated, she sued alleging her termination was in retaliation for her exercising rights guaranteed her under the FMLA.  Since the Communications Center, a non-profit agency did not employ 50 employees, she also sued the cities of Tazewell and Pekin alleging they were joint employers.  In support of her argument that she was joint employer of both cities and the communication center she pointed to the following:

1. The Center rented space from the City of Pekin and, to enter the building, had to wear City of Pekin employee badges;

2. The Center employees were considered employees of the City of Pekin for workers compensation, health insurance and participation in a municipal employees retirement plan; 

3. Center employees are listed as employees on W-2 forms,

4. Center employees were required to comply with a sexual harassment policy that named an  employee of the City of Pekin as the point of contact. 

The cities defended by arguing that the Center was an independent agency and they exercised no control over the terms and conditions of the employment.

The court, after analyzing decisions from other appellate courts, held that the cities and the Center were not joint employers for purposes of the FMLA, because they did not exercise control over the working conditions of the Ms. Moldenhauer.  There was no evidence the cities were involved in activities typically associated with the degree of control an employer exercises over an employee such as sets wages, determining hours worked or the number of individuals working on a shift. As a result, the court ruled in favor of the Center and the two cities.

The Bottom Line:

Any time an employer decides to share employees with another employer, there a pitfalls to consider. One of those is where the sharing arrangement can create liability under workplace and other laws. Any decision to enter into a joint employer relationship should only be made after consulting with legal counsel.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. If you have a legal problem, you are encouraged to seek the advice of an attorney who can provide you with advice tailored to your legal circumstance.