Union Posters Deadline Has Changed/Five Signs That Your Sexual Harassment Case May Be a Loser

Union Poster Not Required Until January 21, 2012

 The NLRB has changed the implementation date for its recently issued employee-rights notice.  The new effective date is January 31, 2012.  The NLRB’s stated reason for the postponement is to “allow for further education and outreach” in light of “queries from businesses and trade organizations . . . about which businesses fall under the Board’s jurisdiction.”   Coincidentally, however, the NLRB’s newly required poster currently is under both legislative and legal attack.  Legislation has been introduced to block implementation of the new poster, and lawsuits have been filed by various groups seeking to enjoin implementation.  Stay tuned for further developments on this contested issue.

 Five Signs That Your Sexual Harassment Case May Be a Loser

How can you, as an employer, know when a sexual harassment case is a loser?

 Here are five factors that may lean against you!

 The accused is a member of management and has admitted to the harassment, OR he hasn’t admitted it, but you are pretty sure he’s guilty.

 This one is obvious. If you have an admission, or just a terrible feeling in your gut that won’t go away, your case may be a loser. 

Your work environment is so bad that you “should have known” the harassment was going on.

Normally, an employer is not liable for sexual harassment that it’s unaware of, which stands to reason. After all, how can you correct a problem you didn’t know existed? BUT . . . and there’s always a “but,” isn’t there? If a work environment is so bad that anyone with eyes to see and ears to hear would have been aware of it, then a court is likely to find that you had “constructive knowledge” of the harassment. This means that, in the eyes of the law, you knew about it, whether you actually knew or not.

You got a complaint of harassment, and then you sat on it.

 Ideally, the investigation of a harassment complaint will begin the same day you get it (or even earlier, if you had actual or “constructive” knowledge of it before you got the complaint). It looks bad when you get a complaint and don’t even start interviewing anybody until two or three weeks later or — even worse — when you wait until the day you get the EEOC charge or the nasty letter from the attorney in the mail. If there is a delay and you don’t have a good excuse, your case may be a loser.

You can’t even remember the last time you had harassment training.

The EEOC/DFEH and a good plaintiff’s lawyer will always ask members of management whether they’ve had harassment training, how long ago, who did it, what it covered, etc. There are at least two reasons for this:  (1) Your company will look very bad if you haven’t done it recently, and (2) inadequate training will give the plaintiff an excuse for not having reported the harassment in a timely manner.  She can plausibly claim that she didn’t report it because she didn’t know she was supposed to report it, or that she didn’t know how to do it.

You should conduct harassment training for supervisors and managers at least once a year, and the training should include how to identify harassment, “high-risk behaviors,” what to do if the manager receives a complaint of harassment or sees a situation in which she believes that harassment may be taking place, and retaliation. Ideally, you’ll conduct annual harassment training for non-management employees, too, which should cover the same topics but in more abbreviated form.

Note: California employers that have 50 or more employees must have their sexual harassment training for managers and supervisors completed by December 31, 2012.

You have established that “quid pro quo” harassment may have occurred.

 Let’s say an employee comes to you and says that she was demoted because she did not surrender to her boss’s “charms.” Let’s further say that you have done everything right — you have mandatory annual harassment training for management and non-management employees, which this boss attended last month, you have a great policy, you promptly investigated the complaint, and you fired him and promoted her as a “thank-you” for coming forward. Unfortunately, you are still liable (“strictly liable”) under the law because the employee suffered what the courts call a “tangible job detriment” as a result of the alleged harassment. All the good things you have done are relevant to damages but not to liability, meaning that at a minimum you could be stuck with nominal damages and his/her attorneys’ fees.

Be proactive, not reactive, in this all important landmine of litigation. Get out on top with your policies, practices, and procedures!