HARASSMENT UPDATE-THREE KEY RULINGS FROM FEDERAL APPEALS COURTS

By now it is a rare company that does not have a well defined and distributed policy prohibiting all forms of unlawful harassment and establishing a complaint/investigation procedure for employees to follow when they are concerned about harassment based on race, gender, national origin, etc. Recent decisions from three federal appeals courts help clarify harassment law and the scope of a company’s legal obligation to respond to harassment complaints:

• complaints made outside authorized channels

This case from the District of Columbia dealt with an employer’s policy that clearly identified the person to whom complaints should be addressed – the EEO Counselor. The employer had well publicized procedures whereby employees could file formal or informal complaints with the EEO Counselor. The plaintiff failed to do so, but did discuss the problem with a lower level supervisor “as a friend” – arguing that the supervisor should have informed the EEO Counselor of the issue. The Court dismissed the case, noting that while the supervisor should have reported the matter to the EEO Counselor, the employee admitted that she was aware that the policy specified the EEO Counselor as the “go to” person. Since the employee failed to follow the policy, she lost her case.

• TIP: Make sure your policy specifies exactly to whom and how a complaint should be made.
• what is severe and pervasive

This was an Alabama case decided by the Federal Appeals Court in Atlanta. The case involved same sex harassment with abundant evidence of “flirtatious behavior” by a male supervisor towards two male subordinates. The Court began by noting the difference between “flirtatious compliments” and harassing conduct, noting that incidents of “flirtatious compliments” – statements about a person’s clothing or overall appearance – do not constitute harassment because they are not objectively hostile even if the person to whom they are directed does not appreciate them (subjectively hostile). The Court refused to consider the many instances of “flirtatious compliments” and focused on four incidents of mildly offensive sexual touching involving shoulder rubs and neck massages over an eight month period – finding that these events were not sufficiently severe or pervasive as to meet the legal definition of harassment.

• TIP: This was a 2-1 decision with a strong dissent from the only female judge on the panel. Employers are well advised to take swift action to curb even “flirtatious compliments” when an employee complains.
• comments made in jest

The Appeals Court in Denver dealt with a claim by a very light skinned Native American that darker skinned Indians teased her about her desire to be considered Native American. The court noted that the comments did not appear to be mean spirited, but were more like casual workplace banter that would not be offensive to an objective person. Therefore, the comments were held to be non-harassing. The employer was the Oklahoma City Indian Clinic.

• TIP: The Clinic dealt with Indian issues, so that much of the conversation about Indians and skin color was at least partly work related. That fact was a likely but unstated factor in the court’s decision. Employers should seek to eliminate even jesting comments when someone complains.

THE POPE WEIGHS IN ON EMPLOYEE FREE CHOICE ACT AND GLOBAL ECONOMY

Pope Benedict XVI issued an encyclical on June 29 addressing the Catholic Church’s social doctrine of promoting the right of employees to form labor unions in a world economy that is straining to avoid collapse. The encyclical, a letter to Roman Catholic bishops, does not mention the Employee Free Choice Act (EFCA) by name, but notes that governments throughout the world have responded to economic crises by limiting the ability of trade unions to organize and negotiate on behalf of workers as a means of controlling wages and the cost of goods manufactured. AFL-CIO President John Sweeney welcomed the encyclical, which he predictably touted as an expression of papal support for EFCA.

But, when considered in context, there is definitely another side to this coin. For instance, the encyclical calls on unions to recognize the social good that corporations can perform by providing consumers with goods and services at more affordable prices and to balance that good against the need to provide a living wage to the corporations’ employees. That part of the encyclical could be interpreted as offering mild criticism of union efforts to boycott companies like Wal-Mart. While unions are quick to criticize Wal-Mart’s employment practices, they fail to acknowledge the economic benefit that Wal-Mart provides to millions of consumers worldwide by allowing them to purchase needed products at prices they can afford. The AFL-CIO did not comment on this part of the encyclical.

NEW OVERTIME LAWSUITS FOCUS ON BLACKBERRIES, CELL PHONES, SMART PHONES

The May 2008 Tip Sheet included a note about the potential for overtime claims by hourly or nonexempt employees who use company issued portable electronic devices to take calls or answer emails off premises after normal work hours. Now, three companies have actually been sued for unpaid overtime under the federal Fair Labor Standards Act by employees who claim they were “working” and should be paid for off duty time they spent responding to questions.

The August 10 Wall Street Journal reported on these cases, which involve T-Mobile USA, CB Richard Ellis Group, and Lincare. The T-Mobile employees used smart phones to text message about work related issues, while the CB Richard Ellis employees used cell phones to answer questions from co-workers about equipment maintenance issues. The Lincare employees also used cell phones to take customer calls for technical advice related to Lincare’s medical equipment.

All these cases involve the same basic facts – nonexempt employees used company issued devices to communicate briefly with co-workers or customers about work related issues after normal working hours. Are these employees performing “work?” When the Fair Labor Standards Act was passed in the 1930s, no one would have thought so – because “work” was thought of as physical labor. But in today’s information economy, using knowledge to answer questions is commonly accepted as “work.”

The outcome of these lawsuits is predictable. The employees will win unless the companies can prove that the amount of time the employees spent responding to the information requests was “de minimis.” As the May 2008 Tip Sheet pointed out, if the number of calls or e-messages were so few, so short, and so sporadic as to be inconsequential, Department of Labor regulations say that employees do not have to paid for the time. The employees will likely testify that they spent significant time engaged in responding to information requests. Plus, the very fact that the companies issued the devices to the employees will be taken as evidence that the company thought that the off duty contacts were important. The key evidence will be company call logs or similar records that may show the number and duration of the off duty contacts. The law does not clearly define the term “de minimis”, but these cases should provide some guidance.