Tag Archives: retaliation

Can Employers Ever Monitor Employees' Personal Social Media?

Yes, but be careful! There is no denying that the use of social media sites such as Facebook, Twitter and LinkedIn has exploded. The explosion includes both personal and business use of social media. It also includes use that is beneficial to employers and use that can be very damaging. Unfortunately, the influx of employment lawsuits that have followed the explosion have had limited practical value in guiding employees and employers on the permissible use and oversight of social media in the workplace. While many questions remain, the California State Legislature's recent enactment regulating employer use of social media does provide some guidance.

California Labor Code section 980 was enacted to prevent employers from (1) requesting an employee disclose usernames or passwords for personal social media accounts; (2) requiring an employee to access his or her personal social media in the presence of the employer; or (3) requiring an employee to divulge any personal social media to the employer. Applicants are protected in the same way as employees. The new statute, coupled with existing privacy laws, limits what employers may monitor when it comes to the personal social media of employees and applicants.

Definition Of Social Media
In what appears to be an effort to account for the ever increasing development of new social media, the new statute broadly defines social media as an “electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or internet web site profiles or locations.”

Prohibitions On Employers Monitoring Social Media
Employers may not require, or even request, that an employee or applicant:

  • Disclose a username or password for the purpose of gaining access to the employee or applicant's personal social media;
  • Access their personal social media in the employer's presence; or
  • Divulge any personal social media.

Employers are also prohibited from retaliating or threatening to retaliate against an employee or applicant who refuses to comply with a request or demand that violates the statute.

Despite the statute's broad definition of social media and its restrictive prohibitions on employers, it does provide some exceptions under which employers may request and gain access to employees' personal social media. For each exception, however, pitfalls exist. Employers need to know them in order to avoid costly mistakes.

Accessing Social Media As Part Of An Investigation
The statute does not affect an employer's existing rights to obtain personal social media “reasonably believed to be relevant” to an investigation of employee misconduct. Under this exception, the employer may only access the employee's personal social media under the condition that it is used strictly for purposes of the investigation or a related proceeding. While the statute does not define what “reasonably believed to be relevant” means, California Courts evaluate employee privacy concerns utilizing a balancing test, weighing the employee's reasonable expectation of privacy against the employer's legitimate business needs for accessing the information. It is wise for employers to evaluate each instance carefully before requesting an employee to divulge his or her personal social media under this exception.

Employer-Issued Electronic Devices
The statute does not preclude an employer from requiring an employee to disclose a username and password for the purpose of accessing an employer-issued electronic device such as a computer, smartphone or e-mail account. Employers should exercise caution, however, before digging through an employee's use of personal social media on the employer-issued device.

It is a violation of the federal Stored Communications Act to access a restricted or password protected site without the owner's consent. So, while it is permissible for an employer to require an employee to provide his or her password for access to the employer-issued device, an employer may be violating the law by accessing social media information on the device. For instance, having the IT department look up the employee's Facebook password stored on the employer-issued device in order to gain access the employee's personal Facebook page.

Adverse Action Against Employees
The statute does not prohibit an employer from terminating or taking adverse action against an employee or applicant if otherwise permitted by law. For instance, an employer may discipline an employee for violating company policy and using personal social media during work time. Nor does the statute specifically prohibit employers from accessing publicly available social media. This means that employers may view the personal social media of its employees that is available to the general public on the internet, such as blogs and other websites that do not restrict user access.

But, before taking any adverse action against an employee based upon the content of his or her personal social media, employers must keep in mind that California law prohibits employers from discriminating against an employee based upon the employee's lawful conduct occurring away from the employer's premises during non-work hours. Moreover, the National Labor Relations Board has held that employees may use social media to voice concerns over working conditions. While an employee complaining about working conditions or an issue with a manager on his or her Facebook page may reflect negatively upon the organization, the employee's use of social media to criticize working conditions may qualify as protected speech for which an employee cannot be lawfully disciplined.

What Is An Employer To Do?
First, be patient. The law develops at a snail's pace compared to the development of new technology and cultural trends. More guidance will come. In the meantime, employers should approach social media issues with careful consideration and planning. This should start with the development of a written social media policy, and not a sample or template policy. The policy needs to be specifically tailored to the employer and should discusses the importance of social media, the impact that social media has on the workplace, and how employee's use of social media reflects upon the organization. The policy should also define the permitted use of technology owned by the organization and employee's expectations of privacy or lack thereof.

If an employer elects to have a policy restricting personal social media use during work hours, it should ensure that the policy is applied even-handedly to avoid claims of discrimination. Employers should also consider the pros, cons and legal issues that relate to restrictions on supervisors' social media interaction with subordinates. For most organizations, it would be advisable to inform employees that they are not required to interact with supervisors on personal social media and will not be retaliated against for refusing to interact with supervisors.

A carefully planned and well written social media policy that outlines the organization's goals and expectations of employees' use of personal social media can help ensure compliance with the new rules and prevent costly disputes with employees.

Thorny FMLA Eligibility Issue: Counting Hours Worked To Meet the 1250 Hour Threshold

Donnelly v. Greenburgh Central School District, a recent federal court decision, addresses one of the core eligibility issues under the Federal Family & Medical Leave Act (FMLA).

The court focused on what hours must be counted toward the 1,250 hours of actual work when determining whether an employee is eligible for leave under the FMLA leave. In particular, the court focused on counting work from home or away from the workplace. The former high school teacher alleged that he was denied tenure in retaliation for taking FMLA leave. The district defended by arguing that Donnelly was not eligible for FMLA leave because he had not worked at least 1,250 hours during the previous 12 months.

The district relied on the certificated collective bargaining agreement to calculate the number of hours Donnelly actually worked. The collective bargaining agreement provided that the maximum work day for a teacher was 7.5 hours, which is one hour longer than the school day. The district multiplied this number by the number of days Donnelly worked during the previous year and found that he worked 1,247 hours (only three hours shy of qualifying for FMLA leave).

Donnelly argued that he typically worked 1.5 hours before and after class and that additional time should be included in calculating his FMLA eligibility. A judge disagreed and relied upon the maximum work day in the collective bargaining agreement in finding that Donnelly was not eligible for FMLA leave because he could not produce reliable evidence showing that he actually worked 1.5 hours each day before and after class performing work that was integral to his teaching job. Accordingly, the judge dismissed his FMLA retaliation claim.

The Federal Appeals Court reversed, finding that a jury should decide whether Donnelly worked enough hours to qualify for FMLA leave.

The Court first noted that under the FMLA regulations, because the school district did not maintain accurate records of the actual hours Donnelly worked, the district had the burden of proving that Donnelly did not work 1,250 hours and was, therefore, ineligible for FMLA leave. The Court further held that the collective bargaining agreement did not govern how many hours Donnelly worked for purposes of FMLA eligibility. The Court emphasized that all of the hours Donnelly worked performing activities that were an integral and indispensable part of his job as a teacher should be counted, regardless of the work day provision in the collective bargaining agreement.

The most important part of the Court's ruling deals with counting work performed from home. The Court held that, especially in the case of teachers who grade papers and plan lessons from home during “off duty” hours, there is no preclusion from counting that time when calculating FMLA eligibility, as long as the work is an integral and indispensable part of the job.

What This Means for Employers

  1. If an employer does not have an accurate and reliable way of accounting for an employee's hours, the employer will bear the burden on summary judgment of proving that the employee did not meet the eligibility requirement, which is a very difficult burden. This will be especially difficult when dealing with salaried employees and those exempt from overtime, because under separate wage and hour laws you cannot require them to record their hours or clock in and out.
  2. Work from home may be counted in determining FMLA eligibility. We live in an era when employers expect employees to be accessible at all times because of cell phones and smart phones. If you expect an employee to respond to email or calls after hours, you may be required to count those hours in determining FMLA eligibility. Furthermore, even if an employer has no way of accounting for work from home, that work may nonetheless be counted in determining FMLA eligibility.

Boston Furs Sued For $1M For Violations of Fair Labor Standards Act

Citing “knowing, deliberate and intentional” violations of federal wage and hour law, the Labor Department is suing Boston Hides and Furs Ltd. and company officials seeking at least $500,000 in back wages and an equal amount in liquidated damages for allegedly underpaying employees of the Chelsea wholesale animal hide business. See Solis v. Boston Hides & Furs Ltd., Anthony Andreottola, Angelo Andreottola and Antoinetta Andreottola Parisi, CV-1:12-CV-11997-MLW. The suit illustrates the significant liability that companies or their owners or management risk by failing to properly pay workers covered by the Fair Labor Standards Act and meet other Fair Labor Standards Act requirements.

Fair Labor Standards Act Wage & Hour Laws Big Business Responsibility
The Fair Labor Standards Act generally requires that an employer pay each covered employee at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular rates for every hour they work beyond 40 per week. When the state minimum wage is higher than the federally mandated wage, and employees work more than 40 hours in a week calculated in accordance with applicable state laws, employees paid at the minimum permissible level are entitled to overtime compensation based on the higher state minimum wage. Time credited may be determined differently under state law versus the Fair Labor Standards Act. Employers must ensure proper crediting, recordkeeping and payment in time to meet both applicable requirements.

The Fair Labor Standards Act also requires employers to maintain accurate records of covered employees’ wages, hours and other conditions of employment and prohibits employers from retaliating against employees who exercise their rights under the law. Special rules also may apply to the employment of children or other special populations.

The rules generally establish a legal presumption that a worker performing services is working as a covered employee of the recipient. Unfortunately, many businesses that receive services often unintentionally incur liability because they ill-advisedly misclassify workers as performing services as independent contractors, salaried employees or otherwise exempt by failing to recognize the implications of this presumption. The presumption that a worker is a covered employee generally means that an employer that treats a worker as exempt bears the burden of proving that a worker is not a covered employee and of keeping accurate records to show that it has properly tracked the hours of and paid each covered employee.

The Fair Labor Standards Act provides that employers who violate the law are, as a general rule, liable to employees for back wages and an equal amount in liquidated damages. State wage and hour laws also typically provide for back pay and liquidated damage awards. Attorneys’ fees and other costs often also are recoverable. In certain instances where the violations are knowing, deliberate and intentional, violators often may risk criminal as well as civil liability.

Labor Department Sues Boston Hides and Furs Ltd For Knowing, Deliberate & Willful Fair Labor Standards Act Violations
The Labor Department lawsuit seeks to recover more than $1 million from Boston Hides and Furs Ltd and various company officials for allegedly engaging in knowing and deliberate violations of the Fair Labor Standards Act minimum wage, overtime and retaliation rules.

The Labor Department filed the lawsuit in federal court in the U.S. District Court for the District of Massachusetts after a Labor Department Wage & Hour Division investigation found the employer committed willful and repeated violations of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act including offering for shipment or sale “hot goods” produced in violation of the law during a period spanning at least three years. The suit also asserts that the company unlawfully retaliated against several workers by firing them after they cooperated with the federal investigation.

In its complaint, the Labor Department claims the investigation found that 14 Boston Hides & Furs employees worked approximately 10 hours per day, six days per week processing hides and furs for shipping to tanneries. These workers were paid a daily cash wage of $50 to $70, which amounted to an hourly pay rate far below the federal minimum wage of $7.25 per hour. The employees also were not paid time and one-half the required state minimum wage of $8 applicable for those hours worked above 40 in a week. Additionally, the defendants failed to keep adequate records of the workers’ employment, work hours and pay rates, and a representative of the defendants falsely told investigators that the company’s payroll records included all employees.

The lawsuit also charges that the defendants ordered employees to hide in a nearby house when Labor Department Wage and Hour Division investigators first arrived at Boston Hides & Furs so they could not be interviewed. Two days after investigators subsequently interviewed the workers, the defendants fired the workers. During their employment, Labor Department claims the workers were threatened and subjected to verbally abusive treatment on an ongoing basis, particularly when they asked about their pay rates.

In addition to back wages and liquidated damages, the Labor Department lawsuit seeks to permanently prohibit the defendants from future Fair Labor Standards Act violations — including a prohibition against shipping any goods handled by workers who were paid in violation of the law — and compensatory and punitive damages for the workers on account of their unlawful firing. The Wage and Hour Division also has assessed $100,000 in civil money penalties against Boston Hides & Furs Ltd. for willful violations of the Fair Labor Standards Act.

Overtime & Other Wage & Hour Enforcement Risks Rising
Employers increasingly risk triggering significant liability by failing to properly characterize, track and pay workers for compensable time in violation of the Fair Labor Standards Act or other laws. Unfortunately, many employers often are overly optimistic or otherwise fail to properly understand and apply Fair Labor Standards Act rules for characterizing on-call or other time, classifying workers as exempt versus non-exempt or making other key determinations.

Employers wearing rose tinted glasses when making wage and hour worker classification or compensable time determinations tend to overlook the significance of the burden of proof they can expect to bear should their classification be challenged. These mistakes can be very costly. Employers that fail to properly pay employees under Federal and state wage and hour regulations face substantial risk. In addition to liability for back pay awards, violation of wage and hour mandates carries substantial civil — and in the case of willful violations, even criminal — liability exposure. Civil awards commonly include back pay, punitive damages and attorneys’ fees.

The potential that noncompliant employers will incur these liabilities has risen significantly in recent years.

Under the Obama Administration, Labor Department officials have made it a priority to enforce overtime, recordkeeping, worker classification and other wage and hour law requirements. While all employers face heightened prosecution risks, federal officials specifically are targeting government contractors, health care, technology and certain other industry employers for special scrutiny. The Labor Department is also using smart phone applications, social media and a host of other new tools to educate and recruit workers in its effort to find and prosecute violators. See, e.g. New Employee Smart Phone App New Tool In Labor Department’s Aggressive Wage & Hour Law Enforcement Campaign Against Restaurant & Other Employers.

Meanwhile, private enforcement of these requirements has also soared following the highly-publicized implementation of updated Fair Labor Standards Act regulations regarding the classification of workers during the last Bush Administration. See Texas Landscaper’s $106,000 In Minimum Wage & Overtime Settlement Reminds Employers To Prepare For FLSA Enforcement, Minimum Wage, Overtime Risks Highlighted By Labor Department Strike Force Targeting Residential Care & Group Homes, Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny, 250 New Investigators, Renewed DOL Enforcement Emphasis Signal Rising Wage & Hour Risks For Employers, and Quest Diagnostics, Inc. To Pay $688,000 In Overtime Backpay.

Employers Should Strengthen Practices For Defensibility
To minimize exposure under the Fair Labor Standards Act, employers should review and document the defensibility of their existing practices for classifying and compensating workers under existing Federal and state wage and hour laws and take appropriate steps to minimize their potential liability under applicable wages and hour laws. Steps advisable as part of this process include, but are not necessarily limited to:

  • Audit of each position currently classified as exempt to assess its continued sustainability and to develop documentation justifying that characterization;
  • Audit characterization of workers obtained from staffing, employee leasing, independent contractor and other arrangements and implement contractual and other oversight arrangements to minimize risks that these relationships could create if workers are recharacterized as employed by the employer receiving these services;
  • Review the characterization of on-call and other time demands placed on employees to confirm that all compensable time is properly identified, tracked, documented, compensated and reported;
  • Review of existing practices for tracking compensable hours and paying non-exempt employees for compliance with applicable regulations and to identify opportunities to minimize costs and liabilities arising out of the regulatory mandates;
  • If the audit raises questions about the appropriateness of the classification of an employee as exempt, self-initiation of appropriate corrective action after consultation with qualified legal counsel;
  • Review of existing documentation and recordkeeping practices for hourly employees;
  • Exploration of available options and alternatives for calculating required wage payments to non-exempt employees; and
  • Reengineering of work rules and other practices to minimize costs and liabilities as appropriate in light of the regulations.

Because of the potentially significant liability exposure, employers generally will want to consult with qualified legal counsel prior to the commencement of their assessment and to conduct the assessment within the scope of attorney-client privilege to minimize risks that might arise out of communications made in the course of conducting this sensitive investigation.

Employer Alert: 2013 Legislative and Regulatory Expansion under California FEHA

On June 28, 2012, Governor Brown signed a budget reconciliation bill that made widespread changes to the organization of many state agencies. Buried in the 160 page bill are very significant amendments to the California Fair Employment & Housing Act (FEHA), which is the comprehensive statutory framework for California’s prohibition on categories for discrimination, harassment and retaliation in employment and housing. The Department of Fair Employment & Housing (DFEH) is the agency that enforces these anti-discrimination standards.

Among the key administrative changes, effective January 1, 2013, the FEHA amendments will:

  • disband the Fair Employment and Housing Commission (FEHC), which was the agency that adopted regulations and acted as the judicial body that conducted evidentiary hearings for accusations of discrimination brought before the commissioners instead of in a civil court;
  • expand specified powers of the DFEH related to complaints, mediations and prosecutions;
  • eliminate a specified cap of actual damages under FEHA (in particular the cap of $150,000 on emotional distress damages when raised in an administrative accusation rather than a civil action);
  • mandate mediation of discrimination, harassment or retaliation charges, at no cost to the parties, but with beefed up penalties for violating any agreement reached by way of alternative dispute resolution;
  • require that certain actions be brought in court by civil action, rather than by “administrative accusations” previously heard by the FEHC;
  • transfer the responsibilities for adopting regulations to the DFEH, through an internal council;
  • shift the venue for claims for emotional distress damages that are pending before the Commission to be tried in Superior Court (subject to agreement of the parties, although how that will operate is ambiguous at this point). Other claims may be heard before an administrative law judge rather than the Commission;
  • New claims, filed on or after January 1, 2013, that the DFEH elects to bring on behalf of individuals or a class of aggrieved employees, may be brought to civil court by the DFEH.

These administrative changes will have potentially profound impact on how every charge of discrimination is investigated, mediated or prosecuted. It could also result in increased risks for hefty damage awards against employers. Consider the contrast between some recent FEHC administrative awards compared to damage verdicts assessed by jurors in civil lawsuits the FEHA:

Fair Employment & Housing Commission Administrative Awards

  • DFEH v. Air Canada — The Commission found violations of FEHA for terminating a customer service agent because of her disability; failing to provide reasonable accommodations; ignoring the employee’s attempts to communicate with the company to return her to work; and ignoring its own accommodations and leave policies. The Commission awarded $102,737.60 in back pay, $19,720 in lost benefits, reinstatement to the same or comparable position, front pay from the first day of the hearing to the date of reinstatement, $125,000 in emotional distress damages, and $25,000 administrative fine.
  • DFEH v. Avis/Budget — The Commission found in favor of a customer service representative at SFO airport because Avis failed to engage in the interactive process, delayed in communicating, made unlawful inquiries about the employee’s disabilities when it initially required her to release her psychiatric medical file or submit to a medical examination, placed her on involuntary leave and failed to reasonably accommodate. The award was $89,863.70 ($14,863.70 back pay & $50,000 emotional distress), plus a $25,000 administrative fine
  • DFEH v UPS — Commission found in favor of a UPS employee who handled customer calls and complaints on shipments. She was allegedly denied a reasonable accommodation and fired based on an inflexible maximum leave policy. FEHC awarded a total of $96,170 representing $31,170.00 in lost wages, $25,000 in emotional distress and a $10,000 administrative fine, plus interest and future wages.
  • DFEH v Acme Electric
    — This case is a notable exception for administrative awards being significantly lower than jury awards in comparable cases. In 2011, the DFEH obtained the largest-ever administrative award of $846,300 against Acme Electric for firing a sales manager who requested limitations on his travel requirements after returning from leave for kidney and prostate surgeries and while still undergoing treatment. The Commission found Acme failed to reasonably accommodate his known travel limitation due to his cancer treatments, failed to engage in a good faith interactive process and failed to take all reasonable steps necessary to prevent discrimination from occurring. The DFEH awarded the employee $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for emotional distress.

Note: FEHC had power to award damages for emotional distress up to $150,000 per aggrieved person under Govt. Code section 12970(a)(3). In contrast, employees suing in civil court can — and do — often obtain hefty awards for their emotional distress, pain and suffering. Likewise, civil litigants who sue and prevail under FEHA may recover their reasonable attorneys’ fees and costs, even if their “win” is for a lot less than they asked from the jury. Until now, DFEH, which prosecuted administrative actions on behalf of employees before the commission, did not recover attorneys’ fees and/or litigation costs, because all of the matters were handled internally within the agency. This new legislation changes this system and authorizes the DFEH to pursue civil lawsuits on behalf of aggrieved parties and seek comparable remedies. The amendments do not change the remedies and requirements for individuals whom the DFEH elects not to represent; but may choose to expand on investigations and mediations in many of those matters prior to issuing a Right to Sue Letter, which is the trigger for the individual to engage counsel for their own civil lawsuit.

Contrasting Jury Verdicts in Civil Lawsuits

  • Wysinger v Auto Club: The jury found that the employer failed to engage in an interactive process when an employee requested a transfer to a different office that would limit his commuting time, due to his disability, although it also concluded that the requested transfer would not have been a reasonable accommodation. The jury award that was upheld on appeal: $2.26 million: (representing $204,000 in economic damages for lost wages; $80,000 non economic damages; $1 million punitive damages; and $978,791 reasonable attorneys’ fees as an item of damage.
  • Schermerhorn vs. Los Angeles Unified School District: a teacher had hip replacement surgery for an industrial injury. He asked to return to work with temporary restrictions before he had reached his maximum medical improvement, but was repeatedly rebuffed. He prevailed on his claims for disability discrimination and failure to engage in the interactive process to consider reasonable accommodations. The award, also upheld on appeal (in an unpublished decision) was $971,750 (representing $380,306 compensatory lost income and emotional distress; $21,836 costs and $568,108 in plaintiff’s attorneys’ fees as an item of damage.
  • Jones v Lodge at Torrey Pines: Jones brought an action against his former employer and his former supervisor for harassment and discrimination based on sexual orientation and retaliation. After his harassment claim was dismissed, the jury returned a verdict on the discrimination and retaliation claims, awarding compensatory damages of approximately $1.4 million against the Lodge and $155,000 against the supervisor individually. The judge set aside the verdict against the supervisor, holding that she could not be held liable for retaliation under the FEHA. The Court of Appeal reversed and the Supreme Court overturned that appeals court. The Supreme Court noted that individual supervisors can avoid engaging in harassment and, therefore, it is fair to subject them to personal liability for harassment. However, in the case of discrimination and retaliation, which involve job actions, supervisors cannot avoid making the personnel decisions which are allegedly discriminatory or retaliatory. These are often joint decisions made by more than one person such that it would be difficult to apportion blame. Nevertheless, the jury’s award against the Lodge was upheld on appeal.
  • Cuiellette v. City of Los Angeles: a jury awarded a Los Angeles Police Department officer $1,571,500 on his claim that he was denied a reasonable accommodation after he asked to return to a lighter duty position following the resolution of his workers’ compensation claim.
  • Bradley v. Department of Corrections: A licensed social worker who was assigned temporarily by a hiring registry to a state prison, where she was subjected to sexual harassment and retaliation, was an employee of the state for the purposes of FEHA even though she was not a state employee under civil service and benefits standards. A jury found that she was subjected to sexual harassment by the prison chaplain and that the prison officials failed to investigate her claim, failed to take corrective action and retaliated against her by firing her in response to her complaints. The jury awarded her $744,000 in damages and attorneys’ fees, which were upheld by the Appeals Court. ($300,000 non economic damages; $87,000 past economic damages; $50,000 “non-duplicative” past economic damages on her retaliation claim; $2,000 future economic damages on the harassment claim and $305,000 attorneys fees as damages).

The legislation is new and it will take some time to digest the changes and to identify where employer policies and procedures will require updating. DFEH will be holding a webinar addressing these changes to their regulatory and enforcement powers on July 25, 2012.

Before it is disbanded, the FEHC is expected to adopt expansive new regulations governing disability discrimination charges and workplace accommodations for pregnant employees. DFEH will handle enforcement and future rulemaking. At its meeting on June 13, 2012, the FEHC made several changes based on public comments. The second public comment period ended on 7/3/12. The regulations, effective on January 1, 2013, significantly expand who is entitled to reasonable accommodations and what employers must consider in making decisions. For example, “essential job functions” must be based only on tasks actually required, as reflected in recent performance evaluations or current job descriptions. The scope of pregnancy-related conditions requiring accommodation is broader. The list of disability accommodations to consider has doubled.

Employers Have Affirmative Duty To Take Reasonable Steps To Prevent Harassment Or Discrimination

On July 26, 2012, a federal judge in Las Vegas ordered Prospect Airport Services, Inc., a provider of wheelchair assistance services to airline passengers, to implement extensive measures to prevent future sexual harassment.

After agreeing to a monetary settlement of $75,000 in a lawsuit brought by the the Equal Employment Opportunity Commission, Prospect refused to agree to any prospective relief to prevent future harassment. The Equal Employment Opportunity Commission petitioned the court for an injunction and order directing compliance.

The judge issued an order prohibiting Prospect from further violating Title VII as it relates to sexual harassment for a period of five years. Prospect must develop a policy and procedures for handling reports of sexual harassment and an effective investigation process for all harassment complaints. It must also “appropriately discipline management and human resources staff for failure to comply with such procedures and provide annual sexual harassment training to all supervisory employees.”

The Equal Employment Opportunity Commission will monitor compliance and can haul Prospect into court again for any failure to comply with these orders or for damages based on new harassment incidents.

The Equal Employment Opportunity Commission had charged the company with failing to address complaints of unrelenting sexual advances toward a male passenger services assistant by a female co-worker. The employee, whose wife had passed away, received sexually suggestive notes and unwelcome advances. He rebuffed the advances and brought the notes to the attention of a general manager who made light of the situation and failed to stop the harassment. There was no effective company policy at the time to address the issue.

Over the course of a year, the harassment escalated to a near-daily basis, including offensive remarks by co-workers about his sexuality due to his rigorous rejection of the sexual advances. Despite his repeated complaints to management, the hostile work environment ended only when he resigned.

The Equal Employment Opportunity Commission’s press release states: “Today the court has spoken to affirm the importance for all employers to have effective policies and procedures in place to prevent discrimination in the workplace … A strong policy, meaningful training and a swift response to complaints help to contain an existing hostile work environment or to prevent one from arising.”

Under California’s Fair Employment & Housing Act (FEHA), failure to “take all reasonable steps to prevent discrimination or harassment from occurring” is a separate unlawful employment practice.

In a precedent-setting decision against a small law firm, the Fair Employment & Housing Commission (FEHC) determined that the Department of Fair Employment & Housing (DFEH) can prosecute an action for such failure, even when the underlying claims of harassment and retaliation aren’t proven.

In DFEH vs. Law Offices of Jeffrey Lyddan, the Fair Employment & Housing Commission determined that Lyddan’s statements, gestures and cartoons directed toward a paralegal, while often in bad taste, did not rise to the level of objectively severe and pervasive harassment that interfered with her ability to perform her job duties. Nevertheless, it supported a “stand alone” action by the California enforcement agency for failing to take all reasonable steps to prevent harassment from occurring. Without actionable harassment or retaliation, such a claim may not be actionable by a private litigant in a civil action.

The Commission found that Lyddan failed to maintain an anti-harassment policy, did not attend harassment training, and failed to order a fair and impartial investigation into the paralegal’s charges of harassment presented in her email when she resigned. Therefore, Lyddan was liable for failure to take all reasonable steps to prevent harassment from occurring.

California’s Fair Employment & Housing Act requires “effective remedies” that will both “prevent and deter” discrimination. This is why the Equal Employment Opportunity Commission and the Department of Fair Employment & Housing require employers to adopt significant future anti-discrimination practices and conduct widespread training as part of their settlement agreements.

The affirmative duty to prevent future harassment goes beyond sexual harassment to other hostile environment claims, including disability, as is seen in Espinoza v. Orange County, in which an employee was awarded more than $850,000 after harassment by his co-workers and indifference by the County to his complaints.

Failure to prevent future discrimination is also a separate unlawful employment practice in disability discrimination lawsuits. The Department of Fair Employment & Housing has obtained settlements and Commission decisions with affirmative requirements for expanding reasonable accommodation procedures, adopting preventative practices and training in several pregnancy and disability discrimination actions in the last 18 months.

In DFEH v. Acme Electric, the Fair Employment & Housing Commission handed down the largest award in its history to a sales manager with cancer when his employer violated California’s Fair Employment & Housing Act by ignoring the duty to engage in a good faith interactive process, refusing to reasonably accommodate his disability and “failing to take all reasonable steps necessary to prevent discrimination from occurring.”

Prevention Strategies

  • Update your discrimination prevention policies and periodically audit their enforcement — even before someone complains.
  • Make sure your complaint procedures have accessible avenues for employees to report harassing work environments.
  • Conduct an immediate neutral fact-finding investigation with every internal discrimination complaint, even when it is raised by a departing employee, because the alleged behavior may still occur with others.
  • Update your disability processes to comply with the broad interactive process and reasonable accommodation requirements imposed by California’s Fair Employment & Housing Act. California law mandates that leaders receive harassment prevention training every two years.
  • Provide training for front-line supervisors on the standards for preventing discrimination or retaliation against employees who seek reasonable accommodations or take leaves of absence for medical conditions and/or disabilities.