Assessment 5 Employment Law SMB PDF

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Running head: EMPLOYMENT LAW

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Employment Law Sandra Bailey Capella University Human Resources Management Employment Law January 19, 2020

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Employment Law Employment law covers all aspects of the employer/employee relationship; more specifically, the rights and obligations of the employer/employee relationship. It encompasses all federal and state statutes, administrative regulations and court opinions related to employment. Employment law is designed to protect employees and ensure they are treated fairly. Some employment laws are enacted as protective labor regulations. In some instances, it also offers protection to the employer. There are federal laws that establish baseline rules on "wage and hour" violations, allowing states to freely pass laws providing additional protection to the employee. For example, federal law requires a minimum wage of $12.00 per hour. Some states have ratified a higher minimum wage, so all employers in those states must comply. Wage and hour laws also regulate overtime pay. Federal regulations do not place any limitations on the number of hours legal adults can work in a week, however, after 40 hours, time and a half must be paid. There are rules controlling the conditions for those under 18 years old, these laws require employers to post notices and maintain adequate payroll records. Discrimination is another legal aspect of protection for employees and responsibility for employers. Through the Civil Rights Act of 1964 and subsequent legislation, it makes it illegal to treat workers differently based on ethnicity, gender, age, disability or religious beliefs. Under state laws and some federal laws, employers are obligated to establish and maintain antidiscrimination or anti-harassment policies to protect all their employees. Where it is not clearly required by law, it is a solid business practice for any employer to have these policies written out and agreed upon by all employees. By spelling out the anti-harassment policy, makes it clear to employees this behavior will not be tolerated and the consequences for failure to adhere to the employers requirements. It may also provide a legal defense for an employer should a

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discrimination lawsuit arise. However if a written policy is in place, the employer must make sure to adhere to it. In preparation to update Java Corporation's anti-harassment policy we reviewed the state statutes in California. California is a unique employment environment which requires to provide extensive documentation and training for employees and supervisors on their anti-harassment policy. “Under SB 820, employers may no longer use settlement agreements to prevent employees from disclosing factual information related to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex if the worker has filed a civil or administrative action” (Nagele-Piazza, 2019). Further, “SB 1300 broadened the legal definition of harassment as well as the employer's obligation to prevent it. For instance, a single incident of harassment is now sufficient to bring a hostile-work-environment claim if the conduct unreasonably interfered with the worker's performance or created an intimidating, hostile or offensive working environment” (Nagele-Piazza, 2019). AB 2770 allows employers to tell any potential employer whether a previous employee is ineligible for rehire because he or she was found to have engaged in harassment. This statute also permits employers to share information about harassment complaints with the worker who complained about harassment and other interested parties, such as witnesses and victims. This will create an avenue for those filing complaints to remain abreast of the investigation. Additional changes in 2020 require California employers with at least five employees (including temporary and seasonal workers) to conduct two hours of sexual-harassmentprevention training for supervisors and one hour for all other employees every two years (within six months for a new hire or a worker who is promoted to a supervisory position). Java Corporation Anti-Harassment Policy

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Java Corporation is committed to ensuring employees who work in administrative offices, stores, manufacturing plant or distribution centers are not subject to any form of discrimination or harassment. We are dedicated to providing a workplace free from unlawful harassment and discrimination of any kind, including unlawful sexual harassment and harassment based on any characteristic protected under local, state or federal employment discrimination laws. These protected characteristics include, but may not be limited to, race, color, ethnic group identification, age (40 or over), religion or religious creed, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, military and veteran status, and sex, gender, gender identity, gender expression, or sexual orientation. Harassment creates a hostile, intimidating and oppressive work environment and denies victims of their legal right to work in a place that's free of discrimination. A solitary occurrence of harassing conduct may constitute harassment, and any hostile-work-environment claim will be reviewed in light of all appropriate conditions. Retaliation is also against the law and under this policy, retaliation of any kind is prohibited against individuals who resist or reject unlawful behavior, report any instances of harassment or perceived harassment, or contribute in an investigation. Unlawful sexual harassment can include unwelcome sexual or gender-based conduct that unreasonably interferes with an individual's job performance or creates an intimidating, hostile, or offensive working environment. 

Common examples include: Verbal or written conduct such as derogatory comments, slurs, epithets, notes, messages, invitations, email or jokes

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Visual conduct such as leering, gesturing, sexually suggestive pictures, posters, or calendars; Internet or email materials that contain sexually explicit or suggestive pictures, cartoons or pornography.

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Physical conduct such as unwelcome touching, hugging, or blocking someone's path in an inappropriate or sexual way.

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Unwanted romantic conduct such as sexual advances, invitations, or attention. Unlawful sexual harassment also includes unwelcome sexual advances or requests for sexual

favors where submission to such conduct is made an explicit or implicit term or condition of employment, or where submission to or rejection of such conduct is made the basis of employment decisions affecting an individual (quid pro quo harassment). This policy applies to all employees, interns, volunteers, third parties and agents of the employer, including supervisory and non-supervisory employees, and it applies to all phases of employment. It also safeguards employees in the workplace from unwelcome conduct by nonemployees, and all reasonable actions will be taken to protect employees from the actions of contractors, suppliers, clients, and others. While it is not the intent of this policy to regulate the social communication or associations mutually entered into by employees, there will be no tolerance for unwelcome conduct that violates this policy. Behavior that is inappropriate in our workplace includes abusive conduct, bullying and other forms of disruptive behavior. Deterrence is the best way to eliminate harassment in the workplace. All new employees, managers and supervisors will receive information on harassment prevention, as well as a copy

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of this policy when they are hired, and will receive ongoing training throughout their employment. Any employee who believes he or she has been illegally harassed by a coworker, supervisor, agent of the employer, or by anyone else in the workplace, should promptly report the misconduct to his or her supervisor, or to the supervisor's supervisor if necessary, or to the human resources department or other designated resources of this organization. It is the responsibility of every employee and supervisor to immediately report any violation or suspected violation of this policy to the appropriate organizational representative to attempt internal resolution. All complaints will be taken seriously and will be investigated in a fair, timely and thorough manner. The investigation will be conducted by qualified personnel, thoroughly documented and monitored for realistic progress and timely closure. Confidentiality will be maintained to the extent possible. Everyone concerned will be provided with due process and a reasonable conclusion will be reached based on the evidence. Any retaliation against those involved will not be tolerated. If a violation of this policy has occurred, remedial actions will be taken to resolve the problem, and when warranted, disciplinary action (up to and including termination) will also be taken. If you have any questions about this policy please talk with your supervisor, or with the human resources department or other designated employer representative. Legal Basis for Protecting Employees from Harassment Federal law prohibits harassment of any kind in the workplace. It is imperative that every employer understand and embrace the necessity for protecting their employees from any kind of harassment or hostile work environment. By adopting proactive procedures, employers can begin

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to address and eliminate these illegal actions, and correct an unhealthy work atmosphere. Establishing an anti-harassment policy provides the organization and its employees with a standard of behavior and expectations. It serves to raise awareness regarding a pervasive issue and the legalities behind it. It ensure that the employee base is aware of the organization’s commitment to treating all workers with dignity, fairness, and respect. Further, it helps to safeguard that all volunteers, vendors and third party agents have the information required to adhere to the policy and promote mutual respect. The anti-harassment policy also identifies the reporting channels and what to expect from the investigative process. Set protocols for the complaint process. If harassment transpired, then there needs to be a discipline process imposed against the harassers so others know there will be accountability. This will help stop potential harassers and hopefully reassure others to come forward with complaints since they see tangible results. Train employees about the anti-harassment policy and what is acceptable workplace conduct. This is a key element to combatting discrimination at work. Tailored training specific to industry and workforce are more successful. It is also important to use real life scenarios that your employees can relate to. Another successful tool combines the training with best practices regarding communication and management techniques. Finally, it is vital to let employees know retaliation will not be tolerated. If you want employees to come forward and report harassment and discrimination at work, they need guarantees that they won’t be retaliated against for speaking out. There must be a timely investigation, along with accountability if harassment is determined. Types of sexual harassment in the Workplace

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Sexual Harassment is a type of discrimination based on sex. It is a protected characteristic under Title VII of the Civil Rights Act. A hostile work environment occurs when conduct or speech is severe and determined that it is demeaning and intimidating work environment. “Harassment in the workplace becomes illegal if the offensive conduct is a condition of continued employment or if the behavior becomes pervasive enough to create an intimidating, hostile or abusive work environment” (Fabiano, 2019). This could occur at a company where sexual jokes or explicit photos are allowed. Under Quid pro quo, would involve someone demanding sexual favors in exchange for a benefit or to avoid punishment in the workplace. This may occur if a supervisor demands a date in exchange for promoting a subordinate. Other Types of Workplace Harassment Psychological harassment can occur when a person feels put down and belittled on a personal level or a professional level. The hurt to a victim’s mental and emotional welfare often creates a domino effect, impacting their work life, physical health and social life. Some examples of psychological harassment in the workplace include: belittling or trivializing the victim’s thoughts, opposing or challenging everything the victim says or discrediting or spreading rumors about the victim. Power harassment is characterized by a power discrepancy between the harasser and the harassed. The harasser uses their power by bullying a victim who is lower on the corporate ladder. Typically, the harasser is a supervisor or manager who victimizes their subordinates. Power harassment isn’t limited to a certain form of conduct. It can be verbal in the form of intimidation or it can be physical in the form of acts of violence. Some examples of conduct the

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harasser subjects the victim include: intrusion into the employee’s personal life, demeaning demands far below the employee’s capability and excessive demands that are impossible to meet. Cyberbullying and online harassment are a serious fear for employers in today’s technological environment. Federal laws doesn’t clearly cover “cyberbullying”. However, the Department of Justice has stated that legal action is likely by prosecuting the online misbehavior under another law. Some forms of cyberbullying include: sending harassing instant messages or text messages directly to the victim, spread lies or gossip about the victim on social media or share humiliating things about the victim by mass email or mass chat. Steps to Best Legally Protect Java Corporation The actions taken by any employer once a harassment claim is reported is critical. It is key to limiting corporation liability and protecting your employee. While legal and policy concerns are crucial, effective communications are equally important, and a team of HR and legal staff should synchronize judiciously with leadership on the company’s response. The company should involve outside legal counsel experienced with handling harassment claims. Counsel can provide guidance on compliance with legal requirements and help the company in deciding whether early resolution is prudent or conceivable. Notify the Board of Directors promptly of significant allegations. The board members may be able to provide helpful guidance regarding difficult accusations based on their experience advising other companies. Employers should show deference, understanding, and concern in initial responses, and continuing through to the complaining party. Employees who witness the company taking concerns seriously are also more likely to seek internal resolution and less likely to resort to litigation. The company should promptly investigate complaints (including those which may initially appear to be meritless). Failure to treat a complaint seriously can significantly

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exacerbate the problem and the liability. “Here are some basic steps which may be appropriate for that plan, depending on the facts: 

Determination of the appropriate scope of the investigation

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Interviews with the complaining party

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Interviews with the accused employee

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Interviews with other employees and third parties (contractors, outside witnesses, etc.) who may have relevant information

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Review of emails, memos, and other relevant communications

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Review of the personnel files of the parties (including any prior disciplinary write-ups)

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If needed, consideration of how to resolve credibility in assessing conflicting reports

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Assessment of whether the initial scope of the investigation needs to be broadened

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Action taken to address the concerns raised, potentially including training and discipline, which should be clearly documented

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Determination of the form any report should follow” (Hermle, 2017).

A full investigation into sexual harassment or discrimination takes time, and it may be appropriate for the employer to take immediate steps with respect to the employee who raised the concerns. Once the investigator reviews all information, and resolves any credibility conflicts to the extent possible, the investigator should attempt to reach a conclusion about the complaint. Cooperate with all government agencies involved in the complaint. Consider all alternatives to the resolution of the complaint, including arbitration. Most importantly, the company should ensure that it does not retaliate against a complaining employee (or a witness involved in the investigation), even if the initial complaint proves to be unfounded. Organizational Benefits from Anti-Harassment Policy

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Prevention is the best tool to avoid anti-harassment claims. The best prevention involves an organizational policy, training and careful adherence to the guidelines. Employees and employers should understand what a "hostile work environment" entails, and all the legal obligations. Important Supreme Court decisions differentiate between sexual harassment committed by employees who are authorized to act on behalf of the business, such as managers and supervisors, and sexual harassment committed by peers. When co-workers sexually harass employees, businesses are usually liable only if the harassment occurred or continued because the business was negligent. Businesses are careless when they learn about an act of sexual harassment and fail to take steps to protect the harassed employee. To avoid accountability, businesses will usually need to investigate the sexual harassment complaint and to take steps, including employee discipline or termination, to avoid the harassment from continuing or recurring. Sexual harassment training helps supervisors and managers understand their duties when they learn or suspect that sexual harassment has occurred. Sexual harassment training can act as a buffer against charges of negligence in three ways. First, by educating all employees about the kinds of conduct that are not allowed in the workplace. Second, by emphasizing during training that the employer has a complaint reporting process and by encouraging harassed employees to follow that process. Third, training managers and supervisors helps them realize the importance of taking sexual harassment complaints seriously. “Sexual harassment in the workplace makes employees less productive. A 2007 study by three psychologists at the University of Calgary found that sexually harassed employees are less committed to their jobs. Employees who feel valued work harder, while sexually harassed employees are less likely to be productive” (sexualharassmenttraining.com, 2019).

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Companies profit from a diverse workforce. When harassment targets employees because of gender or sexual orientation, the harassed employees have an incentive to work elsewhere. The loss of diversity makes businesses susceptible to discrimination lawsuits. In addition, sexual harassment injuries corporate reputations. Consumers may decide not to do business with a company that is apparently as condoning sexual harassment. Sexual harassment training, joined with a sexual harassment prevention policy, promises employees that they are ap...