The recent wave of sexual harassment allegations against media, sports moguls, politicians and people of power over the past year has prompted many state legislatures to address how they are protecting their state’s workers. Many state legislatures are looking to go beyond federal regulations to prevent workplace sexual harassment.
Source: Oxfam America, 2018
From the press release:
The new index, which assesses labor laws and worker protections in all states in the country, puts Washington, DC at the top and Virginia at the bottom
The District of Columbia leads the way in a new ranking of state labor laws and worker protections released by Oxfam America today, while neighboring Virginia comes in last. Washington, California, and Massachusetts also ranked at the top of the first ever Best States to Work Index; Pennsylvania, Montana and Indiana rank in the middle; while Georgia, Alabama, and Mississippi are also at the bottom.
The Best States to Work Index looks at 11 policy areas in three dimensions: wage policies to ensure workers earn as close to a living wage as possible; worker protections so workers can take time off for sickness or pregnancy and have legal protections against sexual harassment; and right to organize policies to protect the rights of workers to find a voice through organizing and sustaining a trade union if they desire.
…. Programs, policies, and training alone do not stop sexual harassment and abuse. My book Working Law — based on surveys of organizations, interviews with HR professionals, and content analyses of both human resources journals and federal court opinions — shows that sexual harassment policies and procedures can comfortably coexist in organizational cultures where women are regularly subjected to demeaning commentary, unwanted physical contact, and even threats or sexual assault. In other words, someone can be sexually harassed without recourse in an organization with plenty of rules on the books. ….
…. But one factor that’s often left out of this conversation is the role the courts have played in shielding companies from legal liability. When a case does manage to reach the legal system, courts will often side with a company due to the mere presence of an official policy, regardless of whether the policy is actually effective in addressing harassment or abuse. I call these policies “symbolic structures,” and they often do more to protect employers from lawsuits than they do to protect employees from harassment. ….
Source: Frank C. Morris, Jr., Jonathan K. Hoerner, and Katherine Smith, Employee Relations Law Journal, Vol. 44, No. 1, Summer 2018
Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center ( MacCluskey), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a coworker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.
In the months since sexual harassment in the workplace exploded into the public consciousness, a growing range of organizations—from Fortune 500 companies to the Senate and the United Nations—are reconsidering their policies and procedures. Often, that means taking a new look at the training they provide employees, which may not have been updated in years or even decades.
In many cases, the training is sure to fail, says Patti Perez, an employment lawyer and vice president at Emtrain, which designs online training content. In a June 19 talk at the annual conference of the Society of Human Resources Management, Perez laid out six reasons corporate training doesn’t work:
– A tick-the-box mentality ….
– Focusing only on prohibited areas ….
– An overly legalistic approach ….
– Cheesy scenarios ….
– Scare tactics ….
– Blaming people ….
Source: Kevin J. Smith, Lindsay C. Stone, Employment Relations Today, First published: April 25, 2018
From the abstract:
While most employers understand the scope of their responsibility to prevent sexual harassment between employees, the scope of an employer’s responsibility to prevent sexual harassment by third parties is often less clear. Such third parties may include customers, clients, sales representatives, vendors, investors, or anyone in the workplace who is not a member of the employer’s workforce. Although an employer may be unable to easily control non‐employee actions, it is legally obligated to respond to any third‐party sexual harassment of its employees that is brought to the employer’s attention. With proper safeguards and remedial action, however, an employer can keep its employees safe from third‐party sexual harassment and protect itself from liability in the process. This Q&A explains employer liability for third‐party sexual harassment, describes the ramifications of an employer’s failure to properly address or prevent it, and recommends strategies to reduce an employer’s legal exposure.
From the summary:
“The Union Effect in California” is a three-part series exploring the ways in which unions affect the lives of all working people—both union members and nonunion members—in California. The studies were conducted as the U.S. Supreme Court prepares to issue a ruling in Janus v. American Federation of State, County, and Municipal Employees that threatens to weaken public sector unions.
The first study, Wages, Benefits, and Use of Public Safety Net Programs, shows that by bargaining together through unions, California workers increase their earnings by approximately $5,800 per worker annually, for a combined total of $18.5 billion. Union workers also have more access to health and retirement benefits, thereby reducing reliance on the state’s public safety net programs.
By Ken Jacobs and Sarah Thomason
The second study, Gains for Women, Workers of Color, and Immigrants, shows that, while all workers in California have higher wages and greater access to benefits when covered by a union contract, those workers who earn the least in nonunion workplaces—women, people of color, and immigrants—gain the most.
By Sarah Thomason and Annette Bernhardt
The third study, A Voice for Workers in Public Policy, analyzes unions as a countervailing force to corporate power in the state. It explores union-backed policies promoting the rights of workers—union and nonunion alike—and addressing broader issues facing working families in the state. Included are policies in the areas of minimum wage, worker benefits, workplace safety, wage theft, employment-based sexual harassment, whistleblower protections, education, immigration, consumer protections, infrastructure and housing, climate policy, and criminal justice.
By Jenifer MacGillvary and Ken Jacobs
We already know how to reduce sexual harassment at work, and the answer is actually pretty simple: Hire and promote more women. Research suggests that this solution addresses two root causes of harassment.
…. But a question #MeToo has been asking since the beginning is how will this affect the lives of women far from the high-powered worlds of Hollywood and Washington. Is this making it any easier for a low or mid-wage worker in middle America to rid her workplace of a sexual harasser?
One important way of doing this is by making an official complaint to the employer. But while women will often complain to family or even on social media, most don’t tell their companies of the misconduct. In fact, barely 1 in 4 ever do. ….
We’re going to see a whole lot more of these “voluntary” agreements after last week’s Supreme Court ruling.
Lowe’s has a message for its store managers: Sign this or else.
Salaried managers and assistant managers at the big-box home improvement retailer are being required to enter binding arbitration agreements under the threat of losing their valuable bonuses, according to a copy of the contract obtained by HuffPost.
By signing the contract, managers agree they won’t take Lowe’s to court with any claims or join in class-action lawsuits against the company. Instead, any grievance they have must be taken individually and in private to an arbitrator ― an arrangement that could significantly cut back workers’ legal claims of unpaid work. ….
The Supreme Court’s Arbitration Ruling Is Already Screwing Thousands Of Chipotle Workers
Source: Dave Jamieson, Huffington Post, May 27, 2018
The burrito chain has asked a court to exclude 2,814 workers from a massive wage theft lawsuit because they signed mandatory arbitration agreements.
Editorial: Forced arbitration hides workplace abuses. No one should forfeit rights for a job
Source: Sacramento Bee, May 24, 2018
Source: Economic Policy Institute, 2017
Forced arbitration, especially where it prohibits the use of a class action of any kind, can be very destructive of employee rights, undermines labor standards, and contributes to wage suppression, discrimination, and poorer working conditions.
The Supreme Court Favors Forced Arbitration at the Expense of Workers’ Rights
Source: Galen Sherwin, ACLU Women’s Rights Project, May 22, 2018
The #MeToo movement has offered an important lesson on the collective power of voices joining together to take on individual experiences of injustice. On Monday, the Supreme Court dealt a huge blow to precisely this kind of collective power, ruling against the ability of workers to join together to take on employment discrimination and abuse.
The court ruled that employers are free to force workers who have been victims of unfair labor practices into private arbitration to address their claims — even in cases where workers sought to bring a collective legal action. The decision came in a case about failure to pay overtime, but its implications are far broader and extend to many of the claims of harassment and discrimination that have surfaced thanks to the #MeToo and #TimesUp movements…..