robintek

As an employer, you can be held liable for any sexual harassment that occurs in your workplace. That’s the bad news. The good news is that you can significantly reduce your organization’s liability exposure if you follow the sexual harassment prevention road map laid out in recent years by the courts. As the U.S. Supreme Court explained in 1998, the purpose of sexual harassment law is not to enable people to sue their employers. The purpose is to motivate employers to take reasonable steps to prevent sexual harassment. When employers can demonstrate that they have fulfilled this duty, they are less likely to be faced with sexual harassment liability damages. This article presents policies and practices an employer should follow in its obligation to prevent sexual harassment.

First and foremost, you should have a written policy against sexual harassment. To be effective and to demonstrate your organization’s concern with preventing sexual harassment, the policy should be comprehensive. It should define what sexual harassment is and give concrete examples. It should explain that sexual harassment is determined by how the person on the receiving end experiences the behavior, not on whether or not the perpetrator intended to harass. It should state that male and female workers can be victims of sexual harassment by harassers of either gender.

The policy should avoid legal jargon and be written in language the average worker will understand. If there are workers who don’t speak English, the policy should be translated into their language(s).

Some employers prefer to disregard sexual harassment in their organizations. Their response to a complaint might be to disbelieve it or to view the person who complained as a troublemaker. Many times employers are liable for sexual harassment, not because of the actual harassment, but because they didn’t make employees aware of complaint procedures, or did not respond correctly when an employee filed a complaint.

Risk-averse employers take every complaint seriously and investigate it using a consistent, reasonable process thatis fair to all, and aim to make a truthful determination of what happened. It is critical that your sexual harassment policy covers how to make a complaint and identify several employees designated to receive complaints. It should explain how complaints are investigated and what happens after the investigation. It should describe how the final determination of legitimate sexual harassment will be made; what the possible penalties are; whether the complaining party has the right to know what penalty, if any, the employer has decided to impose; and whether there is an appeal process.

The policy should strongly prohibit retaliation, giving examples of what retaliation is. It should state that retaliation against complaining parties or witnesses will be taken as seriously as harassment itself.

Some employers have well written policies and think that is sufficient. But it is completely ineffective to have a policy if employees can later claim they never saw it. To ensure that every reasonable effort is made that employees know the policy, each new hire should be given a copy of the policy and sign a receipt stating he or she has read and understood it.

If you want employees to remember the policy and to understand that you’re serious about it, there must be ongoing exposure. Some employers have a brochure or pamphlet that summarizes the policy. Employees can be periodically reminded through memos, articles in employee newsletters, during employee meetings, or by some other means of regular communication.

We live in a culture where people might be frequently exposed, outside of work, to behavior that is highly inappropriate at work. The only way employees will know what behavior the employer requires is if they are educated in this area. It is most important to train employees with supervisory authority since they must enforce the policy against sexual harassment. If a supervisor engages in harassment of a subordinate, the employer is strictly liable.

It is not unusual for someone accused of harassment to say, “I’m not the only one who acted that way.” Often, this is true. If there is an atmosphere where behavior is tolerated that is inappropriate for work or where the employers don’t take sexual harassment seriously, the risk of sexual harassment liability can be high. It will not be a defense against liability to say, “But we had a policy.” The policy must be comprehensive and thorough and it must be strictly followed. These are all simple steps, though not necessarily easy, since they require a substantial commitment of time and resources to be followed correctly. The benefit of this is a reduction in sexual harassment liability risk and, for most employers, a more productive workforce.

Workers Compensation is designed as a trade off between the interests of employers and injured employees. In most circumstances, employers receive immunity from lawsuits by workers who are injured on the job or the survivors of those who are killed in work related events. In return, injured workers are not forced into an unpredictable system of lawsuits with long waiting periods for damages and no guarantee of compensation. They receive medical expenses and compensation for lost wages, or when work-related injuries or disease lead to death. Benefits are guaranteed to the worker’s survivors.

For the most part, the system works just as it was designed. There are a few exceptions, however, when courts allow workers who have on-the-job injuries or occupational disease, or their survivors, to pierce the employer’s immunity and file a personal injury lawsuit. As Workers Compensation is a matter of state law, the rules as to when courts permit these lawsuits will vary somewhat from state to state. Most importantly, they will be based on the unique facts of each case. Nevertheless, there are general circumstances that make courts more likely to find in favor of an injured worker, or his or her survivors.

The key issue the courts usually consider is whether the employer intentionally created a situation that would be, in the words of one court, “substantially certain” to lead to a worker’s injury or death. On this basis, an Oregon court held that an employer could lose its Workers Comp immunity by ordering an employee to perform a task that the employer knows is unreasonably dangerous, such as doing work without safety equipment, and thus is substantially certain to cause injury.

If evidence exists verifying the employer knew it was substantially certain employees could be seriously injured or killed, and then deliberately concealed the information from them, the courts are even more likely to permit an injured employee to sue. This is what happened with companies that manufactured or installed asbestos. Ordinarily, Workers Compensation would have been the employees’ exclusive remedy for lung disease and cancer caused by working with asbestos. But in some instances, workers were able to show that the employers had known about the diseases and nevertheless told them there was little risk or need for safety precautions.

In another example, a Florida employer occasionally and deliberately shut off a workplace ventilation system and misrepresented the potential harm of toxic fumes and the need for safety equipment. The court ruled that due to the employer’s deliberate misrepresentation, injured employees were not limited to Workers Compensation as their exclusive remedy, but could also sue. Similarly, a New Jersey court held that an employer lost the exclusive remedy protection of Workers Comp when it removed the warning labels and safety devices from machinery.

Liability for concealment of risks can even be based on an employee’s inability to read or understand warning labels or safety instructions, according to a South Dakota court. The court’s ruling held that if the employer does not clearly explain the hazards and safety precautions so that the employees understand them, it might lose Workers Comp immunity.

In certain cases, the employer can protect itself if it can show the worker fully understood the risks and decided to do the job anyway. In one case, a widow sued the employer after her spouse fell to his death on a construction job, arguing that the numerous citations the employer had received for failure to provide guard rails showed that the employer should be liable for her husband’s death. But a Florida appeals court rejected her claim, finding that the danger of working on an elevated construction site without a guardrail was, or should have been, obvious to an employee. Therefore, the deceased had chosen to accept the risk and the widow’s exclusive remedy was Workers Compensation benefits.

However, not all risks are obvious, and where they are not, courts are likely to find that the employer has a better understanding of the risks than the employee.

There is one other situation that almost always exposes the employer to potential lawsuits by injured employees: failure to maintain Workers Compensation insurance. If the employer doesn’t have insurance, injured workers or the survivors of those who die from job-related injuries have no barrier to filing a lawsuit, which can be a very costly proposition.

We can help you identify and manage potential risks, which might not be covered by your Workers Comp policy. Give us a call today for more information.

The importance of the temporary worker has increased during the past 10 years due to gaps in staffing caused by downsizing, mergers and acquisitions. A temporary worker can be hired to fill in for an employee on leave or they can be used to augment a company’s permanent staff during seasonal fluctuations. Regardless of the reason for their employment, any business owner who hires temporaries should understand that they are entitled to certain considerations even though they will only be with you for a short time.

That entitlement rests on the answer to an important question of whether or not the temporary is an “employee” or an “independent contractor.” This is especially relevant when it comes to the area of discrimination. The Equal Employment Opportunity Commission (EEOC) says that temporaries are covered employees under the federal and state anti-discrimination laws if the right to control the means and manner of their work performance rests with the hiring company, rather than with the temporaries themselves.

It’s important to note that even though the staffing agency pays the temporary based on the number of hours reported by the business owner; it is the hiring company that oversees the temporary’s work. Moreover, the temporary uses the hiring company’s supplies and equipment and works on-site. In this instance, the liability for providing a discrimination free environment is not transferred to the staffing agency, as most companies would believe. The EEOC says the liability is shared by both the staffing agency and the hiring firm.

The issue of safety in the workplace is another area of vulnerability when it comes to hiring temporary workers. The Occupational Safety and Health Review Commission has taken the stance that companies employing temporary workers are primarily responsible for compliance with the Occupational Safety and Health Act with regard to those workers’ safety. The rationale for this position is again based on the fact that the hiring company controls the means and manner of their work.

Employing temporary workers also has ramifications for the hiring company when it comes to the Family and Medical Leave Act (FMLA). This law requires employers with 50 or more employees to allow any eligible employee to take up to 12 weeks of unpaid family and medical leave in any 12 month period, while still maintaining the employee’s health insurance benefits and usually, to restore the employee to the same or equivalent position upon his/her return. Although the hiring firm does not grant FMLA leave to temporaries, they do have to count temporary workers as part of their contingent when determining if they meet the 50 or more criterion. They must also allow a temporary employee returning from FMLA leave to continue working at their site, even if that means letting another temporary worker go who was hired to replace the worker on leave.

The National Labor Relations Board considers hiring companies and staffing agencies to be joint employers for purposes of the National Labor Relations Act (NLRA) when both make determinations that affect the terms and conditions of the temporary worker’s employment. An important consequence of this joint employer determination for the hiring company is that it may be held liable for the staffing agency’s unfair labor practices toward the temporary worker it has hired.

And finally, hiring companies must include most temporary employees in their employee headcounts to see if their benefit plans qualify for a favorable tax treatment under the Internal Revenue Code. However, several courts have ruled that there is no provision in either the Internal Revenue Code or the Employee Retirement Income Security Act that hinders hiring companies from excluding temporary workers from their benefit programs. Our professionals can help you with these and other hiring issues. Call us today.