Cases from the Crypt

A couple weeks ago, we talked about how Halloween can cause some real-life frights at the workplace.  Well, the workplace isn’t the only place where Halloween has wreaked legal havoc.  Yes, Halloween rears its head in various types of cases.  It’s time to consider some of these ghoulish matters.

The Incredibly Insulting Tombstones

Picture it, the peaceful Village of Bloomingdale, IL.   Unable to afford to store their large recreational vehicle in a storage, facility, the Puttrell family brought their RV and parked on their home’s driveway, where it remained over a year.  As you can imagine, the neighbors weren’t happy about this and eventually petitioned for the Village to adopt an ordinance banning residents from parking RVs on their property.  As  Halloween was quickly approaching, the Putrells responded to their neighbors’ efforts by erecting tombstones in their honor.  These tombstones weren’t simply decorative, though—they carried messages for those who sought the ordinance.

For example, one tombstone was dedicated to their neighbor Bette and read:

Bette wasn’t ready

But here she lies,

Ever since that night she died,

Feet deep in his trench,

Still wasn’t deep enough

For that wench’s stench

Another tombstone read:

Old Man Crimp was a

Gimp who couldn’t hear

Sliced his wife from ear to ear

She died . . . he was fried

Now they’re together

Again side by side!

As you can imagine, the tombstones didn’t do much for neighborly relations.  When the Putrells failed to remove the tombstones after Halloween, the neighbors complained.  Eventually, a scuffle between the Putrells and a neighbor lead to a police officer demanding Mr. Putrell remove the tombstones or face arrest for disorderly conduct.

The Putrells complied but instituted a lawsuit asserting, among other things, a First Amendment claim for violating their free speech rights.  The neighbors argued the tombstones constituted “fighting words,” which would render them unprotected by the First Amendment.  The court ultimately found the speech was indeed protected speech but the officer’s mistake ordering the Putrells to dismantle the tombstones was reasonable under the circumstances and, thus entitled to qualified immunity.

The Court, of course, took some time to take some parting shots at plaintiff’s counsel:

“In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it–on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. Freedom of speech encompasses “‘the freedom to speak foolishly and without moderation,” but it does not follow that every nominal violation of that right is—or should be—compensable.”

The Dark Haunted House

 

In a case out of Lousiana, a plaintiff attended a haunted house and encountered a monster.  The monster scared her to the point where she ran into a cinderblock wall and crushed her nose.  Ouch!  The scared attendee brought suit against the haunted house, arguing the dark walls and lack of lighting created an unreasonably dangerous condition and defendants had a duty to protect her.  The court noted the conditions the plaintiff argued were a dangerous condition were the very attributes of a haunted house:

“The very nature of a Halloween haunted house is to frighten its patrons.  In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits.  Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways.”

Haunted houses everywhere breathe a sigh of relief.

Little Bo Peep’s Smoking Sheep

The Ferlitos decided to attend a Halloween party as Little Bo Peep and her sheep.  Being a real “do-it-yourself” type (those costumes are always the most fun, aren’t they?), Mrs. Ferlito, Little Bo Peep, made her husband’s costume by hot gluing Johnson and Johnson cotton batting on a pair of long underwear.  She also used the cotton batting to create a headpiece.  The end result was a costume covering Mr. Ferlito in the cotton batting from his head to his ankles.

The Ferlitos, dressed up in their costumes and headed to a Halloween party.  At some point during the party, Mr. Ferlito lit up a cigarette, which set his costume ablaze.  The Ferlitos filed suit alleging, in part, Johnson and Johnson failed to warn them the cotton batting was flammable.   The court found a manufacturer’s duty to warn only extends to forseeable uses of the product, which was not the case here.  Furthermore, both parties conceded cotton batting burns when exposed to flame.

We wish you a Happy Halloween.  But, should you find yourself involved in some spooky circumstances, please call us.  The Law Firm of Alejandro Pérez, PLC has experience in advising and litigating a variety of civil litigation matters.

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

 

 

 

Halloween at Work: A Real Hellraiser

Do you love Halloween?  I happen to dig Halloween.  Growing up, my family placed as much emphasis on Halloween as they did on Thanksgiving or Christmas.  The truth is we celebrated everything big:  Cuban family + [insert holiday/special event] = PARTY!  As a family, we still love dressing up, decorating, watching scary movies, attending Halloween parties, haunted houses, and giving out candy.

That said, although it may surprise you, I don’t think Halloween and the workplace mix well.  Some employers who innocently allow their workforce to engage in Halloween celebrations may find themselves in some hair-raising situations that make Michael Myers and Freddy Krueger seem undaunting.  Let’s discuss some potential issues and ways around them.

The Problem with Costumes

People magazine recently released its annual list of potentially offensive Halloween costumes, which include:

  1. Stormy Daniels Look-alike, “Cloudy Affair”;
  2. Sexy Op-Ed Article;
  3. Brave Red Maven, a provocative take on the Handmaiden’s Tale;
  4. Costumes that involve darkening your skin;
  5. Zombie dead celebrities (i.e. Zombie Carrie Fisher, Zombie Tom Petty, etc.) (GASP!)
  6. O.J. Simpson;
  7. Kneeling NFL protestors;
  8. Sexy versions of characters played by children;
  9. Costumes related to Harvey Weinstein and his victims;
  10. The “wall” (yes, the Trump wall);
  11. Sexy border patrol agent;
  12. Costumes dealing with Bill Cosy and his drugging of women

Costumes and work can cause some serious nightmares that can prove costly.  Allowing costumes may lead to such provocative or potentially offensive choices that can create serious risks for discrimination and harassment claims.   It can also create intense tension amongst the workforce.

If you’re absolutely resolute allowing people to dress up consider implementing strict guidelines.  Be prepared to send non-complying employees home to change.  Don’t require everyone to participate by wearing a costume.  Finally, speak to management to ensure they are not isolating employees who refuse to participate.  Such strong-arming or isolating can have serious consequences.

Halloween Parties and Decor

In addition to costumes, workplace Halloween parties and decorations can lead to similar results.  If an employer wants to allow its employees to decorate, that can be fine.  I would ensure the decorations are subtle and non-offensive.  Fewer witches and goblins and more cute gords with smiley faces.

Keep in mind, if you have an actual Halloween party, make sure your employees are on board.  Some employees may have religious convictions that are offended by Halloween.  Consider giving these employees a day off.  Don’t make participation mandatory.  We have seen complaints based on this issue.  In one matter, an employee filed a complaint alleging she was fired for refusing to attend a company Halloween party after she explained to her supervisor she could not participate for religious reasons.  See Morales v. PNC Bank, N.A., No. 10-1368, 2011 WL 3425644 (E.D. Pa. Aug. 4, 2011).  In another case, an employee who declined to dress up for Halloween alleged her employer retaliated against her by reducing her hours and demoting her.   See Meraz v. Jo-Ann Stores, Inc., No. CV 03-2914 GAF, 2004 WL 882458, at *10 (C.D. Cal. Apr. 2, 2004).  

As you can see Halloween can present some scary workplace situations.  The best way to avoid these problems is to just skip the celebration altogether.  However, if you choose to engage in the festivities, that’s fine–just make sure you have some thoughtfully-crafted policies in place and NEVER mandate participation.  Employees should be able to opt-out without penalty or fear of retaliation.

Now, are we ready to trick-or-treat now, or what?

The Law Firm of Alejandro Pérez assists employers in complying with the myriad of laws and situations that impact the workplace.  For employment assistance, please call us at 602.354.2833 or email us at info@alejandroperezlaw.com.

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

Election Time is Upon Us!

It’s time to ensure your voting policies comply with the applicable laws.

What’s in a name?

Earlier this month, a Missouri-based healthcare provider sent rejection letters to various female job applicants. While I would normally applaud that practice, these letters expressed the company’s policy of not hiring employees with “ghetto names.”

Yes, you read that right!

While the healthcare provider denies sending the notices—it claims it was hacked by a disgruntled employee—this brings to light the very real issue of name bias. Name bias can take several forms. Generally, it deals with biases towards men’s names over female names and prejudices against “Black-sounding,” “Latino-sounding,” or “foreign-sounding” names.

It’s a Real Thing!

Studies have shown name bias is a real thing. A 2012 study published in the Journal of Experimental Psychology revealed employees with easy-to-pronounce names are more likely to receive job offers and promotions. Moreover, job applicants with “white-sounding” names were 50 percent more likely to receive job interviews, job offers and promotions.

There have also been documented cases of individuals receiving more favorable recruitment decisions after changing their names.

Name Bias is a Form of Unlawful Discrimination

While it goes without saying, I would be remiss if I did not point out name bias is a form of unlawful discrimination prohibited by Title VII of the Civil Rights act, as well as certain state and local laws. Under McDonnell Douglas v. Green, 411 U.S. 792 (1973), SCOTUS held a plaintiff state a prima facie case of discrimination by showing four elements: (1) The Employee made an application for the position sought and was qualified; (2) the employee is a member of a Title VII protected group; (3) the employee did not receive a job offer; and (4) the employer continued to look for job candidates with similar qualifications.

If an applicant can establish a prima facie case under this standard, the burden shifts to the employer to advance a non-discriminatory reason for the employment decision.

As with any litigation or EEOC investigation, things can get expensive rather quickly.  Of course, I subscribe to the old adage “the best defense is a good offense.”  Employers should take measures to ensure such biases do not permeate their workplace or hiring practices.

What Can We Do?

I am not going to get into the data breach measures the healthcare provider could have taken to avoid this issue.  We can save that for another blog.  But, let’s talk about some solutions to deal with this name-bias problem:

1. Train management and human resources on recognizing implicit and unintentional biases.

2. Ensure nondiscrimination and harassment policies are specific and address this type of bias.

3. Consider instituting “blind hiring.” This can entail, among other things, redacting candidates’ names from their materials before putting them in circulation.

4. Structure interviews so candidates vying for the same positions are asked the same questions.

5. Make sure your selection criteria is clear and strictly enforced.

6. Keep records as to why certain candidates were chosen for interviews and, ultimately, for the position.

The Law Firm of Alejandro Pérez is experienced in assisting employers to comply with federal, state, and local laws that affect the workplace.  We regularly counsel employers on employment matters and draft thoughtful, inclusive policies that are meant to comply with all federal mandates and protect our clients from litigation.  The Firm also facilitates training on EEO, diversity and inclusion, implicit bias, respectful workplace norms, leadership skills training, and a number of other employment-related issues.

Please contact us to assist you in eliminating name bias–and other biases-from your workplace.  You can reach us at info@alejandroperezlaw.com

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

Dear Employers:  You’re Being Recorded!

I see it more and more every day: employees are recording their employers.  Our trusted bestie and sidekick, the smartphone, along with other technological advances, have made recording workplace conversations easy.  Such recordings can be used as powerful tools in litigation and have the ability to become public-relations nightmares.

Because of this, many clients are asking me whether they can implement broad policies prohibiting recording.  The answer, of course, depends.  Sweeping policies banning workplace recording may be subject to various challenges.  Let’s discuss some specific concerns.

Certain States Allow Recordings

As a threshold matter, it is important to note 38 states allow recordings so long as one party consents to the recording.  Conversely, 12 states require all parties to consent to a recording.  Take a look at the nifty map below for details on your state.

While courts have not yet dealt with preemption strikes against these recording prohibition laws, there is a strong likelihood state laws disallowing recordings are preempted by federal laws for purposes of employment protection, such as engaging in protected activity.

 

Secret Recordings and Whistleblower Statutes

OSHA investigates violations of whistleblower provisions contained in a variety of statues aimed at protecting employees report violations of specific concerns, including safety, financial reform, health insurance reform, and securities laws.

Administrative review boards tasked with making final decisions on OSHA-related matters regularly find an employee recording made in good faith to gather evidence to support a whistleblower claim.  In fact, the boards have found a broad range of employee conduct is allowed, such as taking photographs, making secret recordings, and performance of quality control and quality assurance functions.

Secret Recordings and Federal Nondiscrimination Laws

There is no bright-line rule regarding secret recordings and the discrimination claims. On one hand, some courts have held recordings for proposes of gathering evidence to support a workplace discrimination claim is a protected activity and should not result in employee termination.  This approach, however, represents the minority view on workplace recordings as they relate to discrimination claims.

A clear majority of courts have held employers are able to lawfully terminate an employee who engages in secret recording so long as that recording violates an employee

Other courts look at the facts on a case-by-case basis.  These courts tend to look at whether there were other ways to gather the same evidence that would not violate an employer’s policies.

Secret Recordings and the NLRB

In its memo issued June 6, 2018, the NLRB analyzed this issue and ultimately determined no-recording rules as lawful.  The NLRB recognized such rules could have a chilling effect on recording protected concerted activities.   Nevertheless, the NLRB recognized such policies would actually promote open discussion and the free exchange of ideas.

Accordingly, it looks like no recording policies may be legal and enforceable in certain circumstances.

So, Now What?

A carefully-drafted policy prohibiting secret recordings is an important first step in combatting this issue.  Of course, the policy should keep in mind the conflicting views by various federal agencies and be tailored accordingly.  Such policies should clarify recording is permitted to address certain grievances and areas of concern (such as whistleblower claims).  The policy should also explicitly state it is not intended to chill employee rights under the NLRA.

My grandmother always said if you assume you’re always being watched, you will always do the right thing. While this caused me some nightmares early on, the point is applicable.  Supervisors, managers and HR professionals should always assume they are being recorded.  This is a reality in today’s workplace.

Employers should also ensure their management and HR professionals are properly trained and understand the applicable laws so they don’t misspeak or create a legal issue.

Attorney Alejandro Pérez is a skilled employment attorney who understands the real-life nuances that occur in the workplace.  Mr. Pérez regularly consults clients on employment best practices and is experienced in conducting sensitive workplace investigations; delivers training on a myriad of workplace issues, including sexual harassment; and drafts sound employment policies assisting his clients in limiting liability and fostering positive employer-employee relationships.

To schedule a consultation and discuss your legal matters, please contact us at info@alejandroperezlaw.com.

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

 

 

 

 

 

 

Winter (well, ICE) is coming . . .

You may recall President Donald Trump issuing his first set of immigration orders and announcing enforcement as the orders’ primary purpose.  “The Presidential Order on Buy American and Hire American” made specific plans to increase workplace enforcement.  The Acting Director of ICE, Thomas Homan, confirmed ICE’s stance on workplace enforcement.  You can see his speech here.  If you don’t have an hour and a half to spare, the most salient points of Homan’s speech included:

  • ICE has already increased the number of inspections and worksite operations
  • A further significant increase in these activities is a plan for the next fiscal year
  • The time spent on enforcement will rise by four or five times
  • ICE will not only prosecute employers who hire illegal workers but also detain and remove illegal workers

Guess what?  ICE is making good on its promise.  As of earlier this year, ICE has served more over 5,000 audit notices to business owners across the country.  Since the beginning of ICE’s fiscal year (October) , it has initiated over 60 investigations.  These investigations have resulted in approximately 675 criminal arrests and 1,000 administrative arrests.

Derek Benner, Acting Director of Homeland Security Investigations recently stated:

“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law. Worksite enforcement protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen[s] public safety and national security.”

The mandate is clear, friends. And the penalties are great.  Fines for paperwork violations range from $216 to $2,156 per form.  If an employer is found to have employed an unauthorized worker, it will be fined up to $16,000 per count and face criminal exposure.

Now is the time to make sure you are in compliance!   Hiring an attorney to review evaluate your I-9 form practices will assist you in avoiding potential fines and even possible criminal exposure.

The Law Firm of Alejandro Perez is experienced in issues relating to I-9 and overall workplace compliance.  We are experienced in conducting audits to correct mistakes and remedy any potentially unlawful practices.  We are also able to provide training to assist you in implementing a proper compliance system to avoid fines, lawsuits, and criminal liability.  We can also assist you if you are facing a government audit or civil lawsuit.  Please do not hesitate to contact us for assistance:  info@alejandroperezlaw.com or 602.354.2833.

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

Is Working From Home a Reasonable Accommodation?

I get this call pretty frequently. A client wants know whether it should accommodate an employee by allowing the employee to telecommute. The answer, in typical attorney fashion, is “it depends.” And it does. It really does.

Cue Bill Clinton video:

Telecommuting is an interesting topic. Years ago, I remember people professing that everyone would be working at home in the 2000s. Well, that never really came to be. Studies devoted to this phenomenon attribute telecommuting’s slow acceptance to a mixture of lack of trust, fear, cost, and other similar variables on the employer’s side. On the employee side, factors such as a sense of isolation, fear, and inability to engage in office politics are reasons regularly proffered for the lack of employees willing to engage in telecommuting. Who knows why, but we haven’t seen the numbers rise as initially anticipated. That said, we also haven’t seen flying cars come to be, despite Back to the Future II’s promise way back when.

An employer or the employee may suggest telecommuting–and it’s not a bad idea. But be cautioned: telecommuting should only be used as an accommodation to the extent the disability necessitates it. While I am generally a proponent of telecommuting and actually do it frequently, it’s another thing to be bootstrapped by a decision and get burned down the line, or incur excessive costs only to find out nothing has changed in relation to productivity or performance.

As a threshold matter, the EEOC does not require employers to have telecommuting programs. See EEOC Fact Sheet: Work at Home/Telecommuting as a Reasonable Accommodation. Case law is all over the place on this and there is no brightline rule. Here is are some things to consider, though:

1. Look at the disability. One of the most important things to ask yourself is whether the disability will truly be accommodated by allowing the employee to telecommute? In a 2015 case, the Sixth Circuit found telecommuting was not a reasonable accommodation for an employee with severe irritable bowel syndrome to work from home because her condition did not allow her to agree to any predictable schedule in which Ford could count on having her there in person. In conclusion, the job HAS to get done, right? The employee has to be able to be available to work and perform his or her duties.

2. Look at the job. Can the employee perform the essential job functions at home without imposing an undue hardship on the business? Does the employee supervise or monitor the work of others? Are face-to-face interactions required? Look closely at the job’s essential requirements. If the employee has to report to work, telecommuting may not be reasonable.

3. Look at the employee. Can the employee be trusted? Does the employee have attendance issues or problems meeting deadlines. If the employee is non-exempt, what safeguard will you have in place to limit him or her to an 8-hour workday?

Of course, as the universe would have it, no two cases are ever the same. The Law Firm of Alejandro Pérez is experienced in helping employers navigate through ADA compliance and advising clients on accommodation issues. Do not hesitate to contact our office for assistance.

Posted in Employment Law Tags: work from home, telecommuting, ADA, disability, reasonable accomodations, Americans with Disabilities Act, HR, Discrimination

Considering Hiring an Unpaid Intern? Read this!

Last month, the Department of Labor announced a new test it will utilize to determine whether interns working for “for-profit” companies are entitled to wage and overtime protection under the Federal Labor Standards Act (“FLSA”).

Under FLSA, employers are required to pay their employees minimum wage and overtime. Of course, not all workers are “employees” for purposes of FLSA compliance–for example, unpaid interns are not considered employees. Of course, just because an employer classifies a worker as an unpaid intern doesn’t make it so. As is the case with all legal queries, whether an employer has adequately classified a worker is a fact-driven inquiry.

Before its announcement, the DOL applied a six-part test to determine whether unpaid interns were actually employees for purposes of FLSA.

Over the past few years, however, litigation challenging the classification of unpaid interns has increased substantially. Under that test, to classify an worker as an unpaid intern, an employer had to establish: (1) the training provided was similar to what would be provided in a vocational school or academic educational institution; (2) the training was for the benefit of the interns; (3) the interns did not displace regular employees, but worked under their close supervision; (4) the employer derived no immediate advantage from the activities of the interns and occasionally had their operations impeded; (5) the interns were not necessarily entitled to a job after completion of the program; and (6) it was understood that the interns were not entitled to wages for the time spent training.

Each of the six criteria had to be satisfied to establish an intern was not an employee.

Over the years, litigation surrounding unpaid interns increased exponentially. Several courts, including the Second and Ninth Circuits, rejected the DOL’s six-factor test, favoring instead a more flexible and holistic analysis that simply asks who is the “primary beneficiary” of the relationship. The DOL considered the approach taken by courts in announcing its new rule.

Under its new test, the DOL will examine the “economic reality” of the relationship between the employer and intern and assess who derives the “primary benefit” from the intern-employer relationship.

To guide the DOL, the following factors should be considered: (1) the extent to which the intern and employer clearly understand there is no expectation of compensation; (2) the extent to which the internship provides training similar to what would be provided in an educational environment; (3) the extent to which the internship is tied to the intern’s formal education program such as through integrated coursework; (4) the extent to which the internship accommodates the intern’s academic commitments; (5) the extent to which the internship’s duration is limited to the period in which it provides the intern with beneficial learning; (6) the extent to which the intern’s work complements (but does not displace) the work of paid employees and provides significant educational benefits to the intern; and (7) the extent to which the intern and employer understand that the internship is conducted without an entitlement to employment at its conclusion.

Unlike the previous rigid test, the factors above are not exhaustive. Moreover, the test applies to interns in a “for-profit” organization only. Unpaid internships for charitable non-profit organizations and the public sector are generally permissible; however, employers in those sectors should verify whether the unpaid intern actually qualifies as a true “volunteer,” which is a different analysis.

The DOL’s new test aligns with case law. While more flexibility exists, employers should carefully consider the DOL’s guidance when creating unpaid internship positions. The Law Firm of Alejandro Pérez possesses significant Labor and Employment Law experience has experience advising its clients on these critical issues. Don’t go through it on your own. Call our office with your questions.

Sexual Harassment Guidance is Coming. But Don’t Put Off for Tomorrow What You Can do Today!

The #MeToo movement is changing the face of the employment relationship when it comes to sexual harassment claims. In fact, the U.S. Equal Employment Opportunity Commission’s Chair, Victoria Lipnic, recently announced that changes to the decades-old enforcement guidelines on sexual harassment would be receiving an overhaul. The proposed revisions, according to Lipnic, are currently under review by the White House’s Office of Management and Budget.

Lipnic reported the agency has not yet seen a spike in sexual harassment claims but did say she is interested in seeing what would happen over the next year. With this in mind, there is no better time for employers to take steps to ensure they have a harassment-free workplace. Here are some things employers can start doing immediately.

First, employers should always take allegations of sexual harassment seriously and address them promptly. Employers should quickly investigate such claims by hiring a law firm that will conduct a thorough, unbiased and neutral investigation.

Employers should be wary when hiring their regular law firm to conduct the investigation because doing so may lead to harsh consequences in today’s sexual harassment landscape. For example, in previous years, it was common for a firm to respond to such an allegation by hiring their regular outside counsel to conduct a defense-oriented investigation that, many times, would result in a confidential resolution. Many employers, however, are discovering previous sexual harassment settlements may not be thoroughly protected by confidentiality clauses.

Second, employers should review their workplace policies and harassment reporting procedures. Reviewing and updating these policies will assist with the company in promptly and adequately responding to sexual harassment claims. Strong policies will provide employers a roadmap on how to uniformly deal with issues as they arise. Not to mention, strong anti-harassment policies send a strong message to an employer’s workforce.

Third, employers should conduct sexual harassment and cultural sensitivity training. An educated management and supervisory team is an employer’s best asset! While the best practice is to train employees upon onboarding, employers should ideally train managers and supervisors at least two hours every other year and line employees 30-60 minutes every other year. Employers should work closely with the law firm facilitating the training to address any specific concerns and special needs the employer may have.

Fourth, employers should audit old settlement agreements to determine any potential exposure. As we have learned in the news, these confidentiality clauses may not pass muster. Recall Olympic gold medalist McKayla Maroney testified against USA gymnastics team doctor Larry Nassar’s sentencing hearing despite having signed a nondisclosure agreement with USA Gymnastics years earlier.

It’s no secret we believe the best way for an employer to protect itself is “doing the right thing.” Taking these measures will help ensure the employer has processes in place for when a claim of sexual harassment arises.

Alejandro Pérez is a skilled employment attorney who understands gender dynamics ad LGBT-specific issues. Mr. Pérez regularly consults clients on employment best practices and is experienced in conducting sensitive workplace investigations; delivers training on a myriad of workplace issues, including sexual harassment; and drafts sound employment policies to assist his clients in limiting liability and fostering positive employer-employee relationships.